## 1. One Ideal among Others



The Rule of Law is one ideal in an array of values that dominates
liberal political morality: others include democracy, human rights,
social justice, and economic freedom. The plurality of these values
seems to indicate that there are multiple ways in which social and
political systems can be evaluated, and these do not necessarily fit
tidily together. Some legal philosophers (e.g., Raz 1977) insist, as a
matter of analytic clarity, that the Rule of Law in particular must be
distinguished from democracy, human rights, and social justice. They
confine the focus of the Rule of Law to formal and procedural aspects
of governmental institutions, without regard to the content of the
policies they implement. But the point is controversial. As we shall
see, some substantive accounts have been developed, which amount in
effect to the integration of the Rule of Law with some of these other
ideals.


## 2. The Contestedness of the Rule of Law



The most important demand of the Rule of Law is that people in
positions of authority should exercise their power within a
constraining framework of well-established public norms rather than in
an arbitrary, *ad hoc*, or purely discretionary manner on the
basis of their own preferences or ideology. It insists that the
government should operate within a framework of law in everything it
does, and that it should be accountable through law when there is a
suggestion of unauthorized action by those in power.



But the Rule of Law is not just about government. It requires also
that citizens should respect and comply with legal norms, even when
they disagree with them. When their interests conflict with
others' they should accept legal determinations of what their
rights and duties are. Also, the law should be the same for everyone,
so that no one is above the law, and everyone has access to the
law's protection. The requirement of access is particularly
important, in two senses. First, law should be epistemically
accessible: it should be a body of norms promulgated as public
knowledge so that people can study it, internalize it, figure out what
it requires of them, and use it as a framework for their plans and
expectations and for settling their disputes with others. Secondly,
legal institutions and their procedures should be available to
ordinary people to uphold their rights, settle their disputes, and
protect them against abuses of public and private power. All of this
in turn requires the independence of the judiciary, the accountability
of government officials, the transparency of public business, and the
integrity of legal procedures. 



Beyond these generalities, it is controversial what the Rule of Law
requires. This is partly because the Rule of Law is a working
political idea, as much the property of ordinary citizens, lawyers,
activists and politicians as of the jurists and philosophers who study
it. The features that ordinary people call attention to are not
necessarily the features that legal philosophers have emphasized in
their academic conceptions. Legal philosophers tend to emphasize
formal elements of the Rule of Law such as rule by general norms
(rather than particular decrees); rule by norms laid down in advance
(rather than by retrospective enactments); rule by norms that are made
public (not hidden away in the closets of the administration); and
rule by clear and determinate legal norms (norms whose meaning is not
so vague or contestable as to leave those who are subject to them at
the mercy of official discretion). But these are not necessarily what
ordinary people have in mind when they call for the Rule of Law; they
often have in mind the absence of corruption, the independence of the
judiciary, and a presumption in favor of liberty. 



Contestation about what the Rule of Law requires is partly a product
of the fact that law itself comprises many things, and people
privilege different aspects of a legal system. For some the common law
is the epitome of legality; for others, the Rule of Law connotes the
impartial application of a clearly drafted statute; for others still
the Rule of Law is epitomized by a stable constitution that has been
embedded for centuries in the politics of a country. When Aristotle
(*Politics* 1287b), contrasted the Rule of Law
with the rule of men, he ventured the opinion that "a man may be
a safer ruler than the written law, but not safer than the customary
law". In our own era, F.A. Hayek (1973: 72 ff.) has been at
pains to distinguish the rule of law from the rule of legislation,
identifying the former with something more like the evolutionary
development of the common law, less constructive and less susceptible
to deliberate control than the enactment of a statute. There is also
continual debate about the relation between law and the mechanisms of
government. For some, official discretion is incompatible with the
Rule of Law; for others it depends on how the discretion is framed and
authorized. For some the final determination of a court amounts to the
Rule of Law; for others, aware of the politics of the judiciary, rule
by courts (particularly a politically divided court) is as much an
instance of the rule of men as the decision of any other junta or
committee (see Waldron 2002 for a full account of these
controversies).



The fact that the Rule of Law is a controversial idea does not stop
various organizations from trying to measure its application in
different societies. Groups like the World Justice Project concoct
criteria and indexes of the Rule of Law, ranking the nations of the
earth in this regard. Countries like Norway and New Zealand rank at
the top of the Rule-of-Law league and countries like Zimbabwe and
Afghanistan at the bottom (see
 Other Internet Resources).
 The criteria can be hardly be described as rigorous. But people in
business value these rankings as part of their estimation of country
risk for foreign investments (see Barro 2000: 215ff.)


## 3. History of the Rule of Law



The Rule of Law has been an important ideal in our political tradition
for millennia, and it is impossible to grasp and evaluate modern
understandings of it without fathoming that historical heritage. The
heritage of argument about the Rule of Law begins with Aristotle (c.
350 BC); it proceeds with medieval theorists like Sir John Fortescue
(1471), who sought to distinguish lawful from despotic forms of
kingship; it goes on through the early modern period in the work of
John Locke (1689), James Harrington (1656), and (oddly enough)
Niccolo Machiavelli (1517); in the European Enlightenment in
the writings of Montesquieu (1748) and others; in American
constitutionalism in *The Federalist Papers* and (and even more
forcefully) in the writings of the Federalists' opponents; and,
in the modern era, in Britain in the writings of A. V. Dicey (1885),
F.A. Hayek (1944, 1960, and 1973), Michael Oakeshott (1983), Joseph
Raz (1977), and John Finnis (1980), and in America in the writings of
Lon Fuller (1964), Ronald Dworkin (1985), and John Rawls (1971).
Because the heritage of this idea is so much a part of its modern
application, a few highlights need to be mentioned. 


### 3.1 Aristotle



The work of Aristotle on the Rule of Law is still influential. Though
he formulated the question of whether it was better to be ruled by the
best man or the best laws, he approached that question realistically,
noting that it depended not only on the type of law one was
considering but also on the type of regime that enacted and
administered the law in question (*Politics* 1282b)




But Aristotle did maintain that law as such had certain advantages as
a mode of governance. Laws are laid down in general terms, well in
advance of the particular cases to which they may be applied.
Moreover, 



> 
> 
> laws are made after long consideration, whereas decisions in the
> courts are given at short notice, which makes it hard for those who
> try the case to satisfy the claims of justice. (*Rhetoric*
> 1354b) 
> 
> 
> 



There were, he conceded, some cases so fraught with difficulty that
they could not be handled by general rules--cases that required the
focused insight of particular judges; he used the term
*epieikeia* (sometimes translated as equity). But these cases
should be kept to a minimum and legal training and legal institutions
should continue to play a role in the way they are disposed of.
Aristotle's discussion of the general desirability of rules and
his treatment of *epieikeia* continue to influence modern
jurisprudence (see Scalia 1989 and Solum 1994).


### 3.2 John Locke



John Locke in the second of his *Two Treatises of Government*
(1689) emphasized the importance of governance through
"established standing Laws, promulgated and known to the
People". He contrasted this with rule by "extemporary
Arbitrary Decrees" (Locke 1689: SSSS135-7). Now
the term "arbitrary" can mean many different things.
Sometimes it means "oppressive". But when Locke
distinguished the rule of settled standing laws from arbitrary
decrees, it was not the oppressive sense of "arbitrary"
that he had in mind. In this context, something is arbitrary because
it is extemporary: there is no notice of it; the ruler just figures it
out as he goes along. It is the arbitrariness of unpredictability, not
knowing what you can rely on, being subject, as Locke put it (1689:
SS137), to someone's 



> 
> 
> sudden thoughts, or unrestrain'd, and till that moment unknown
> Wills without having any measures set down which may guide and
> justifie their actions. 
> 
> 
> 



In Locke's story, one of the things that people wanted to get
away from in the state of nature was being subject to others'
incalculable opinions--even when those others were thinking as
hard and rigorously as they could about natural law. Your thinking
might be different from my thinking, and it might turn out that your
view of the relation between your interests and my interests and your
property and my interests might be quite different from my view of the
matter and quite different again from the view of the next person I
came across. The whole point of moving from a state of nature to a
situation of positive law was to introduce some predictability into
this picture.



Unfortunately, having laid down this requirement, Locke complicated
matters by adding a substantive principle of respect for private
property: "The Supream Power cannot take from any Man any part
of his Property without his own consent", and any law that
purports to do so is of no validity (Locke 1689: SS138). But then
there is a difficulty. Though Locke gave us his own theory of
prepolitical property rights--the so-called "Labor
Theory" in Chapter Five of the *Second Treatise*--it
was itself far from uncontroversial. People in our day, as in his,
disagree about the rival claims of labor and occupancy; they disagree
about the background of common ownership; and they disagree about how
much anyone may appropriate and how sensitive his appropriation must
be to the needs of others. We disagree about all that--in ways
that were made evident, for example, in the debates about the Lockean
theory of Robert Nozick (1974). And Locke and his contemporaries
disagreed too; Locke knew, and signaled in a number of places that he
knew just how controversial all this was (Tully 1980: 64 ff; for
Locke's awareness of the controversies, see Waldron 1999:
74-5).



By insisting therefore that positive law is subject to this
substantive constraint, Locke subjected the legislature to a
discipline of uncertainty. Because the natural right of property was
controversial, so the administration of any substantive constraint
along these lines was bound to be controversial. And because the
substantive constraint was supposed to affect the validity of positive
law (Locke 1689: SS135), the effect would be that some
people--let's say those who disagreed with Locke about the
claims of labor over occupancy--would disagree with him about
which positive rules of property are valid and which are not. 


### 3.3 Montesquieu



Montesquieu's work on the Rule of Law is best known in
connection with his insistence on the separation of
powers--particularly the separation of judicial power from
executive and legislative authority (see Montesquieu 1748: Bk. 11, Ch.
6). The judiciary has to be able to do its work as the mouthpiece of
the laws without being distracted from fresh decisions made in the
course of its considerations by legislators and policy-makers.
Montesquieu's views on the separation of powers had a profound
effect on the American founding, particularly in the work of James
Madison (*Federalist Papers*, SS47).



Elsewhere in *The Spirit of the Laws*, Montesquieu developed a
theory of the value of legalism. Noting that despotic governments tend
to have very simple laws which they administered peremptorily with
little respect for procedural delicacy, Montesquieu argued that legal
and procedural complexity tended to be associated with respect for
people's dignity. He associated this sort of respect with a
monarchy ruling by law, as opposed to despotism:



> 
> 
> In monarchies, the administering of a justice that hands down
> decisions not only about life and goods, but also about honor,
> requires scrupulous inquiries. The fastidiousness of the judge grows
> as more issues are deposited with him, and as he pronounces upon
> greater interests. (Montesquieu 1748: Bk. VI, ch. 1, p. 72)
> 
> 
> 



This emphasis on the value of complexity--the way in which
complicated laws, particularly laws of property, provide hedges
beneath which people can find shelter from the intrusive demands of
power--has continued to fascinate modern theorists of the rule of
law (e.g., Thompson 1975: 258-69).



In the modern debate we also hear echoes of the doctrine propounded in
*The Spirit of the Laws* (1748: Bk. 26, ch. 15, p.510) that
"things that depend on principles of civil right must not be
ruled by principles of political right". "Civil
right"--Montesquieu's word for what we call private
law--is, he said, "the palladium of property", and it
should be allowed to operate according to its own logic, not burdened
with the principles of public or political regulation. A failure of
the Rule of Law in this regard is likely to lead to the impoverishment
of an economy, as expectations collapse, and owners' incentives
for production and enterprise are undermined (Montesquieu 1748: Bk. V,
ch. 14, p. 61).


### 3.4 Dicey



Writing in the second half of the 19th century, Albert Venn
Dicey bemoaned what he saw as a decline in respect for the Rule of Law
in England. The Rule of Law used to be a proud tradition that
distinguished governance in England both from the executive domination
of *droit administratif* in France and also from the fatuous
and abstract certainties of paper constitutions in countries like
Belgium etc. For Dicey, the key to the Rule of Law was legal equality:




> 
> 
> [W]ith us no man is above the law [and] every man, whatever be his
> rank or condition, is subject to the ordinary law of the realm and
> amenable to the jurisdiction of the ordinary tribunals. (1992 [1885]:
> 114) 
> 
> 
> 



Attractive as this is in the abstract, it exhibited a certain naivety
so far as the legal position of state officials was concerned.
Officials are and often need to be treated differently in law than the
ordinary citizen: they need certain extra powers and they need to be
hemmed in by extra restrictions, so that they can be held accountable
for the actions they perform in the name of the community. For the
ordinary person, the Rule of Law generates a presumption in favor of
liberty: everything which is not expressly prohibited is permitted.
But for the state and its officials, we may want to work with the
contrary presumption: the state may act only under express legal
authorization.



Dicey had a knack of expressing the Rule of Law in terms of principles
whose eloquent formulations belied their deeper difficulties. His
first principle of the Rule of Law was: 



> 
> 
> [N]o man is punishable or can be lawfully made to suffer in body or
> goods except for a distinct breach of law established in the ordinary
> legal manner before the ordinary Courts of the land. (Dicey 1992
> [1885]: 110) 
> 
> 
> 



This seems fine if we are talking about the imposition of criminal
sanctions. But "made to suffer in ... goods" can also
be read to connote the imposition of restrictions on the use of
personal or corporate property, or the giving or withholding of
licenses, grants, and subsidies. It can be read as precluding any form
of discretionary regulation. Dicey was indeed inclined to disparage
all administrative discretion, particularly where it seemed to be
superseding what had traditionally been regarded as judicial
functions. But can we really do without discretion in modern
governance? Some modern scholars of administrative law have denounced
Dicey's account as an "extravagant",
"absurd", and pernicious version of the Rule of Law (Davis
1969: 27-32).


### 3.5 Hayek



F.A. Hayek was by training an economist, but he also nurtured an
interest in the relation between legal structures and forms of
national economy. Hayek's work on the Rule of Law proceeded in
two phases: (1) from his wartime book *The Road to Serfdom*
(1944) through to *The Constitution of Liberty* (Hayek 1960);
and (2) the somewhat different account presented in his trilogy,
*Law, Legislation and Liberty* (1973), an account which is more
congenial to the spirit of common law and hostile to the role of
legislation.



(1) Governance during wartime necessarily required total mobilization
and management of all of the society's manpower and resources.
Hayek warned in 1944 against the retention of anything like this mode
of administration in peacetime. He made an eloquent argument that in
normal times a society need not be managed but should be
governed--and its people largely left to their own
devices--within a framework of general rules laid down in
advance. These rules would operate impersonally to protect people from
one another, not being aimed at any person or situation in particular
and not being dependent for their operation on any expectation on the
part of government as to what the particular effects of their
application would be. But this lack of particular knowledge on the
part of the government would be offset by the fact that rules would
provide a framework of predictability for ordinary people and
businesses. They would know that they would not be molested by the
state, provided they operated within the parameters of the general and
impersonal rules. Human freedom, on Hayek's account, did not
preclude all state action; but it does require that state action be
calculable.



(2) In the 1970s, Hayek began to rethink all this. The attention was
still on the implications of Rule of Law for liberty. But now Hayek
began to wonder whether the texts of clear general legislated rules
would really provide an appropriate framework for freedom. It was, he
said, a mistake to think that "by confining the judge to the
application of already articulated rules we will increase the
predictability of his decisions". Articulated rules are
"often a very imperfect formulation of principles which people
can better honour in action than express in words" (Hayek 1973:
118). He favored something more like a common law model of
predictability, with principles and solutions emerging from a series
of judicial decisions in an almost evolutionary
 way.[1]
 The evolution of principles that distinguished themselves by their
reasonableness was superior, Hayek thought, to the deliberate
imposition of rules by a legislator. According to Hayek, the
legislative mentality is inherently managerial; it is oriented in the
first instance to the organization of the state's own
administrative apparatus; and its extension into the realm of public
policy generally means an outward projection of that sort of
managerial mentality with frightful consequences for liberty and
markets. 


### 3.6 Fuller



Lon Fuller believed that government in accordance with the forms and
procedures of law had a distinctive value that could help close the
gap of separation between positive law, on the one hand, and morality
and justice on the other. The conventional wisdom of the legal
positivists held that laws could be impeccably drafted and
even-handedly administered and still be hideously unjust: antebellum
slave law in the United States and apartheid law in South Africa were
often cited as examples. But Fuller believed, as a matter of political
psychology, that there would be reluctance to use the forms of
law--general and public norms--to embody and inscribe
injustice. He believed that "coherence and goodness [had] more
affinity than coherence and evil", he thought bad things
happened in the dark as opposed to the sunlight of legality, and he
maintained that "even in the most perverted regimes there is a
certain hesitancy about writing cruelties, intolerances, and
inhumanities into law" (Fuller 1958: 636-7). 



Fuller acknowledged that this link between legality and justice was
tentative. It was certainly controversial. But whether this connection
held or not, he also wanted to insist that the complete absence of
respect for formal criteria of legality might deprive a system of
power of its status as law:



> 
> 
> When a system calling itself law is predicated upon a general
> disregard by judges of the terms of the laws they purport to enforce,
> when this system habitually cures its legal irregularities, even the
> grossest, by retroactive statutes, when it has only to resort to
> forays of terror in the streets, which no one dares challenge, in
> order to escape even those scant restraints imposed by the pretense of
> legality--when all these things have become true of a
> dictatorship, it is not hard for me, at least, to deny to it the name
> of law. (Fuller 1958: 660)
> 
> 
> 



In his 1964 book *The Morality of Law*, Fuller formulated
principles of what he called "the inner morality of
law"--principles requiring that laws be general, public,
prospective, coherent, clear, stable, and practicable--and he
argued that these were indispensable to law-making. Reviewing
Fuller's book, H.L.A. Hart (1965) asked in what sense these
principles could be called a "morality". They seemed to be
more like instrumental principles for effective legislation, and on
Hart's view, they were only as moral as the enterprise they made
possible. 



Fuller responded by denying that the significance of his eight
principles was purely instrumental. They also constituted a morality
of respect for the freedom and dignity of the agents addressed by the
law: what they made possible was a mode of governance that worked
through ordinary human agency rather than short-circuiting it through
manipulation or terror. This thesis was separate from the connection
between law and morality intimated in Fuller 1958. But the two
accounts of the moral significance of law were connected in a way that
John Finnis explained:



> 
> 
> A tyranny devoted to pernicious ends has no self-sufficient reason to
> submit itself to the discipline of operating consistently through the
> demanding processes of law, granted that the rational point of such
> self-discipline is the very value of reciprocity, fairness, and
> respect for persons which the tyrant, ex hypothesis, holds in
> contempt. (1980: 273)
> 
> 
> 



Fuller's work on the Rule of Law had one last nuance. He
understood that law constituted a distinct kind of governance that
might not be relevant for every task of the state. He contrasted it
not just with a Nazi-style reign of terror, but with the sort of
managerial administration that might be necessary for allocative
decision-making in a mixed economy like the United States in the
1960s. In modern political economy, said Fuller, we face problems of
institutional design "unprecedented in scope and
importance". Focusing more on the procedural side of the Rule of
Law, Fuller insisted that we lawyers acknowledge that although
"[a]djudication is a process with which we are familiar and
which enables us to show to advantage our special talents",
still it may be "an ineffective instrument for economic
management" (Fuller 1964: 176).


## 4. Rule of Law and Rule by Law



Some theorists draw a distinction between the Rule of Law and what
they call rule *by* law (see e.g., Tamanaha 2004: 3). They
celebrate the one and disparage the other. The Rule of Law is supposed
to lift law above politics. The idea is that the law should stand
above every powerful person and agency in the land. Rule by law, in
contrast, connotes the instrumental use of law as a tool of political
power. It means that the state uses law to control its citizens but
tries never to allow law to be used to control the state. Rule by law
is associated with the debasement of legality by authoritarian
regimes, in modern China for example.



Thomas Hobbes may be seen as a theorist of rule by law. In a society
whose members disagree about property, he thought it conducive to
peace for the sovereign of a society "to make some common Rules
for all men, and to declare them publiquely, by which every man may
know what may be called his, what anothers" (Hobbes 1647: Bk.
II, ch. 6, sect. ix).
But Hobbes also thought that it would undermine peace--indeed it
would undermine the very logic of sovereignty--for the ultimate
law-maker to be bound by the laws he applied to his subjects (Hobbes
1991 [1651]: 184).



However, the distinction may not be so clear-cut. Even rule by law
seems to imply that rulers accept something like the formal discipline
of legality. Unless the orders issued by the state are general, clear,
prospective, public, and relatively stable, the state is not ruling by
law. So this thin version of legality does still have moral
significance in the respect it pays to the human need for clarity and
predictability. Rule by law "can be a way a government ...
stabilizes and secures expectations" (Goodpaster 2003: 686).
Even if its use remains instrumental to the purposes of the state, it
involves what Fuller called a bond of reciprocity with the purposes of
those who are governed: the latter are assured that the promulgated
rules are the ones that will be used to evaluate their actions (see
also Winston 2005: 316).



Some jurists who maintain the contrast between the Rule of Law and
rule by law have a more ambitious agenda. They take seriously the
ancient idea that we might be ruled by laws and not by men. One may
ask: how is that supposed to happen? After all, all law is made by
people and interpreted by people and applied by people. It can no more
rule us by itself, without human assistance, than a cannon can
dominate us without an iron-monger to cast it and an artilleryman to
load and fire it. The jurists who contrast the Rule of Law with rule
by law believe they can make this work by focusing on laws whose human
origins are in some way diffuse or immemorial. We are not necessarily
talking here about natural law, but perhaps about something like
customary law or common law--law that is not so evidently a
top-down product of powerful human law-makers (Epstein 2011). Common
law grows and develops under its own steam, and need not be conceived
as a device by which some identifiable humans rule over others. No
doubt there is a lot of mythology in this. A more realistic view of
common law identifies it with the deliberate and arbitrary rule of an
entity that Bentham (1792) called "Judge & Co". But it
remains true that the human element is diffuse in this sort of system,
and at any given time the law that emerges is a resultant of the work
of many people rather than the intentional product of a domineering
majority ruling us from the legislative center of a state.



As we saw in the discussion of Hayek (1973), the other side of this
coin is a disparagement of legislation, precisely because its
enactment seems patently and undeniably to represent the rule of
powerful officials. Legislation is a matter of *will*. The
legislative process produces law simply by virtue of a bunch of people
in an assembly *deciding* that a given law is to be produced.
And this is done by the very men--powerful politicians--to
whose power the Rule of Law is supposed to be an alternative. 



However, most people who value the Rule of Law do not accept this
approach. If a statute is properly drafted (if it is clear,
intelligible and expressed in general terms) and prospectively enacted
and promulgated, and if it is administered impartially and with due
process--they will call this an entirely appropriate exercise
under the Rule of Law. Indeed that is what many scholars mean by the
Rule of Law: people being governed by measures laid down in advance in
general terms and enforced equally according to the terms in which
they have been publicly promulgated. The argument that it should be
put aside because it does not contrast sufficiently with the rule of
men seems perverse.



No one doubts that legislation can sometimes undermine the Rule of
Law, by purporting for example to remove legal accountability from a
range of official actions or to preclude the possibility of judicial
review of executive action. But this is not a problem with legislation
as such; this is a concern about the content of particular enactments.
Rule by judges, too, can sometimes be seen as the very sort of rule by
men that the Rule of Law is supposed to supersede (see Waldron 2002:
142-3 and 147-8). 


## 5. Formal, Procedural and Substantive Requirements



Theorists of the Rule of Law are fond of producing laundry lists of
the principles it comprises. These principles are of disparate kinds,
which may loosely be divided into principles that address the formal
aspects of governance by law; principles that address its procedural
aspects ; and principles that embrace certain substantive values.


### 5.1 Formal Aspects



The best known are the eight formal principles of Lon Fuller's
"inner morality of law": (1964; see also the lists in
Finnis 1980: 270-1; Rawls 1999: 208-10; and Raz 1979 [1977]:
214-18) generality; publicity; prospectivity; intelligibility;
consistency; practicability; stability; and congruence. These
principles are formal, because they concern the form of the norms that
are applied to our conduct. 



So for example, the requirement that laws be general in character,
rather than aimed at particular individuals, is purely a matter of
form. It is compatible with invidious discrimination so far as its
substance is concerned, since even a norm like "A person who is
of African descent must sit in the back of any public bus that they
ride on" applies, universalizably, to everyone. A formal
requirement of generality does not guarantee justice; but that partly
reflects the fact that justice and the Rule of Law work as separate
criteria for evaluating a political system.



Generality is an important feature of legality, reflected in the
longstanding constitutional antipathy to Bills of Attainder. Of course
law cannot work without particular orders, but as Raz points out (1979
[1977]: 213) the generality requirement is usually taken to mean that
"the making of particular laws should be guided by open and
relatively stable general rules". These rules themselves should
operate impersonally and impartially.



Besides the form of the rules themselves there is also the nature of
their presence in society. The Rule of Law envisages law operating as
a relatively stable set of norms available as public knowledge. It
requires that laws be public and that they be promulgated well in
advance of individuals' being held responsible for complying
with them. These are features that flow partly from the fact that laws
are supposed to guide conduct, which they cannot do if they are secret
or retroactive. But it is not just a matter of the pragmatics of
governance. Laws face in two directions: (i) they impose requirements
for ordinary citizens to comply with; and (ii) they issue instructions
to officials about what to do in the event of non-compliance by the
citizens. Laws that are secret and retroactive so far as (i) is
concerned may still operate effectively in respect of (ii). So the
Rule-of-Law requirements of publicity and prospectivity have an
additional significance: they require that citizens be put on notice
of what is required of them and of any basis on which they are liable
be held to account.



The requirement of clarity is also important in this regard. Laws must
be public not only in the sense of actual promulgation but also in the
sense of accessibility and intelligibly. True, much modern law is
necessarily technical (Weber 1968 [1922]: 882-95) and the
lay-person will often require professional advice as to what the law
requires of him. It is also an important part of the Rule of Law that
there be a competent profession available to offer such advice and
that the law must be such as to make it possible for professionals at
least to get a reliable picture of what the law at any given time
requires. In the nineteenth century, Jeremy Bentham (1782: ch. 15 and
1792) criticized customary law in general, and common law in
particular, for failing to satisfy this requirement: the sources of
law were hidden in obscurity and though there were spurious appeals to
precedent, much of the law was just made up by the judges as they went
along.


### 5.2 Procedural Aspects



We should complement this list of formal characteristics with a list
of procedural principles as well, which are equally indispensable to
the Rule of Law. We might say that no one should have any penalty,
stigma or serious loss imposed upon them by government except as the
upshot of procedures that involve (I have adapted this list from
Tashima 2008: 264):


1. a hearing by an impartial and independent tribunal that is
required to administer existing legal norms on the basis of the formal
presentation of evidence and argument;
2. a right to representation by counsel at such a hearing
3. a right to be present, to confront and question witnesses, and to
make legal argument about the bearing of the evidence and the various
legal norms relevant to the case; and
4. a right to hear reasons from the tribunal when it reaches its
decision, which are responsive to the evidence and arguments presented
before it.



Arguably, such procedural principles matter more in the ordinary
person's conception of the Rule of Law than the formal criteria
mentioned in the previous section. When people worried that the
American detention facility in Guantanamo Bay from 2003 to the present
was a "black hole" so far as legality was concerned, it
was precisely the lack of these procedural rights that they were
concerned about. What the detainees demanded, in the name of the Rule
of Law, was an opportunity to appear before a proper legal tribunal,
to confront and answer the evidence against them (such as it was), and
to be represented so that their own side of the story could be
explained. No doubt the integrity of these proceedings would depend in
part on the formal characteristics of the legal norms that were
supposed to govern their detention, whose application in their case
they could call in question at the hearings that they demanded. It is
difficult to make a case at a hearing if the laws governing detention
are kept secret or are indeterminate or are constantly changing. Even
so, we still miss out on a whole important dimension of the Rule of
Law ideal if we do not also focus on the procedural demands themselves
which, as it were, give the formal side of the Rule of Law this
purchase. 



Some procedural requirements are also institutional in character:
there must be courts and there must be judges whose independence of
the other branches of government is guaranteed. This side of the Rule
of Law is connected with the constitutional principle of the
separation of powers. That principle is sometimes justified simply on
the ground that it is unhealthy for power to be institutionally
concentrated in society. But it also has a Rule of Law justification
inasmuch as it assigns distinct significance to distinct stages in the
making and application of laws (Waldron 2013).


### 5.3 Substantive Theories



Though many jurists follow Raz 1977 in thinking that the Rule of Law
is a purely formal/procedural ideal, others believe in adding a more
substantive dimension. They do not think it is possible to sharply
separate our political ideals in the way Raz seems to suppose. At the
very least, the formal/procedural aspects generate a certain momentum
in a substantive direction. Generality--proceeding according to a
rule--is often said to contain the germ of justice (Hart 1961:
ch. 8). And, stability, publicity, clarity, and prospectivity indicate
a pretty fundamental connection between the Rule of Law and the
conditions of liberty. We have to be careful, however, to distinguish
between allegedly substantive requirements of the Rule of Law and
specification of the deeper values that underlie and motivate the
ideal even in its formal and procedural requirements.



Some jurists believe that there is a special affinity between the Rule
of Law and the vindication and support of private property. Ronald
Cass (2004: 131) says that "[a] critical aspect of the
commitment to the rule of law is the definition and protection of
property rights". 



> 
> 
> [T]he degree to which the society is bound by law, is committed to
> processes that allow property rights to be secure under legal rules
> that will be applied predictably and not subject to the whims of
> particular individuals, matters. The commitment to such processes is
> the essence of the rule of law. Cass (2004: 131)
> 
> 
> 



Others, like Richard Epstein (2011: 10), accept that
"[a]nalytically, the rule of law is ... a separate
conception from private property". But they think nevertheless
that a contingent connection between the Rule of Law and private
property can be established by showing that the forms of regulation
defenders of private property are concerned about tend to be forms of
regulation that the Rule of Law, even on a more austere conception,
prohibits.



It is also widely believed--though not necessarily by the same
people who associate legality with property--that a system of
positive law that fails to respect fundamental human rights should not
be dignified with the term "the Rule of Law". The World
Justice Project in 2011 quoted Arthur Chaskalson, former Chief Justice
of South Africa, to this effect:



> 
> 
> [T]he apartheid government, its officers and agents were accountable
> in accordance with the laws; the laws were clear; publicized, and
> stable, and were upheld by law enforcement officials and judges. What
> was missing was the substantive component of the rule of law. The
> process by which the laws were made was not fair (only whites, a
> minority of the population, had the vote). And the laws themselves
> were not fair. They institutionalized discrimination, vested broad
> discretionary powers in the executive, and failed to protect
> fundamental rights. Without a substantive content there would be no
> answer to the criticism, sometimes voiced, that the rule of law is
> "an empty vessel into which any law could be poured".
> (World Justice Project 2011: 9)
> 
> 
> 



On the other hand, as we have seen, Joseph Raz (1979 [1977]: 211) is
famous for insisting that "the rule of law is just one of the
virtues which a legal system may possess and by which it is to be
judged", and that we should not try to read into it other
considerations about democracy, human rights, and social justice.
Those considerations, he said, are better understood as independent
dimensions of assessment. Tom Bingham, in his book on *The Rule of
Law*, said this in response to Raz:



> 
> 
> While ... one can recognize the logical force of Professor
> Raz's contention, I would roundly reject it in favor of a
> "thick" definition, embracing the protection of human
> rights within its scope. A state which savagely represses or
> persecutes sections of its people cannot in my view be regarded as
> observing the rule of law, even if the transport of the persecuted
> minority to the concentration camp or the compulsory exposure of
> female children on the mountainside is the subject of detailed laws
> duly enacted and scrupulously observed. (Bingham 2010: 67)
> 
> 
> 



Lord Bingham's position has an intuitive appeal in the eyes of
many commentators, even if it irritates in its casual rejection of a
point whose logic it claims to recognize.



Both Chaskalson and Bingham seem to want to fill out the formal/
procedural conception of the Rule of Law with some human rights
component. And many liberals are inclined to follow them in that. But
this is not the only possibility. Many associate the Rule of Law with
a presumption of liberty or the principle of human dignity.
Others--Arthur Chaskalson hinted at this--associate the Rule
of Law with a substantive dimension of democracy. 



All this sounds an analytic danger signal. Once we open up the
possibility of the Rule of Law's having a substantive dimension,
we inaugurate a sort of competition in which everyone clamors to have
their favorite political ideal incorporated as a substantive dimension
of the Rule of Law. Those who favor property rights and market economy
will scramble to privilege their favorite values in this regard. But
so will those who favor human rights, or those who favor democratic
participation, or those who favor civil liberties or social justice.
The result is likely to be a general decline in political articulacy,
as people struggle to use the same term to express disparate
ideals.


## 6. The Values Underlying the Rule of Law



Even if the principles of the Rule of Law are purely formal in their
application, we don't just value them for formalistic reasons.
Most fundamentally, people value the Rule of Law because it takes some
of the edge off the power that is necessarily exercised over them in a
political community. In various ways, being ruled through law, means
that power is less arbitrary, more predictable, more impersonal, less
peremptory, less coercive even. It establishes what Fuller (1964:
39-40) called a bond of reciprocity--a mutuality of
constraint--between the ruler and the ruled, and in that sense it
mitigates the asymmetry that political power otherwise involves.



Connected with this, the Rule of Law is valuable and important because
it establishes an environment that is conducive to liberty. According
to Hayek's theory of the Rule of Law--particularly in the
early phase of his work (see
 section 3.5
 above)--we value requirements like generality and impersonality
because they free us from dependence upon others' wills:



> 
> 
> My action can hardly be regarded as subject to the will of another
> person if I use his rules for my own purposes as I might use my
> knowledge of a law of nature, and if that person does not know of my
> existence or of the particular circumstances in which the rules will
> apply to me or of the effects they will have on my plans. (Hayek 1960:
> 152)
> 
> 
> 



Hayek also maintained that requirements of clarity, prospectivity and
so on make an important contribution to predictability, which he
thought was indispensable for individual freedom. Predictability is
often cited as a Rule-of-Law virtue. In his well-known recent book on
the subject, Tom Bingham indicated that one of the most important
things people needed from the law that governed them was
predictability in the conduct of their lives and businesses. He quoted
Lord Mansfield to the effect that 



> 
> 
> [i]n all mercantile transactions the great object should be certainty:
> ... it is of more consequence that a rule should be certain, than
> whether the rule is established one way rather than the other. (Lord
> Mansfield in *Vallejo v. Wheeler* (1774) 1 Cowp. 143, p. 153
> (cited by Bingham 2010: 38)) 
> 
> 
> 



Bingham went on to observe in his own voice that 



> 
> 
> [n]o one would choose to do business ... involving large sums of
> money, in a country where parties' rights and obligations were
> undecided. (Bingham 2010: 38) 
> 
> 
> 



These conceptions claim to bring a certain air of reality to our
discussions of freedom. There may be no getting away from legal
constraint in the circumstances of modern life, but freedom is
possible nevertheless if people know in advance how the law will
operate and how they have to act to avoid its application. Knowing in
advance how the law will operate enables one to make plans and work
around its requirements (see Hayek 1960: 153 and 156-7). And
knowing that one can count on the law's protecting property and
personal rights gives each citizen some certainty about what he can
rely on in his dealings with other people. The Rule of Law is
violated, on this account, when the norms that are applied by
officials do not correspond to the norms that have been made public to
the citizens or when officials act on the basis of their own
discretion rather than norms laid down in advance. If action of this
sort becomes endemic, then not only are people's expectations
disappointed, but increasingly they will find themselves unable to
*form* expectations on which to rely, and the horizons of their
planning and their economic activity will shrink accordingly.



So we need a basis for expectation. The best account of the importance
of legal expectations was given by the utilitarian philosopher Jeremy
Bentham, in a work called "Principles of the Civil Code".
Expectation, said Bentham, is "a chain which unites our present
existence to our future existence". 



> 
> 
> It is hence that we have the power of forming a general plan of
> conduct; it is hence that the successive instants which compose the
> duration of life are not isolated and independent points, but become
> continuous parts of a whole. (Bentham 1931 [1802, 1864]: 111)
> 
>  



The establishment of expectations, said Bentham, is largely the work
of law, and the security of expectations is a vital constraint on the
action of law: "The principle of security ... requires that
events, so far as they depend upon laws, should conform to the
expectations which law itself has created...".



Joseph Raz and Lon Fuller took the point about freedom even further.
Raz (1979 [1977]: 221) suggested that securing an atmosphere conducive
to freedom was a matter of dignity: "Respecting human dignity
entails treating humans as persons capable of planning and plotting
their future" (Raz 1979 [1977]: 221). In Lon Fuller's
theory, too, the principles of the inner morality of law were valued
for the way they respected dignity:



> 
> 
> To embark on the enterprise of subjecting human conduct to rules
> involves ... a commitment to the view that man is ... a
> responsible agent, capable of understanding and following
> rules.... Every departure from the principles of law's
> inner morality is an affront to man's dignity as a responsible
> agent. To judge his actions by unpublished or retrospective laws, or
> to order him to do an act that is impossible, is to convey ...
> your indifference to his powers of self-determination. (Fuller 1964:
> 162)
> 
> 
> 



What is said here about the connection between dignity and
Fuller's formal principles can be said even more about the
connection between procedure and dignity. Procedural principles
capture a deep and important sense that law is a mode of governing
people that treats them as though they had a perspective of their own
to present on the application of norms to their conduct and situation.
Applying a norm to a human individual is not like deciding what to do
about a rabid animal or a dilapidated house. It involves paying
attention to a point of view. As such it embodies a crucial
dignitarian idea--respecting the dignity of those to whom the
norms are applied as beings capable of explaining themselves.


## 7. Opposition to the Rule of Law



No account of the Rule of Law is complete if it does not mention the
ways in which this ideal is deprecated. The laudatory history of the
Rule of Law in the work of thinkers like Aristotle, Locke, Dicey,
Hayek and Fuller has been matched by opponents of legality such as
Plato (in *The Statesman*), Thomas Hobbes (at least if the Rule
of Law is supposed to take us beyond rule by law), and Carl Schmitt
1923 (in his attack on parliamentarism and on the liberal assumption
that rules can prevail even under conditions of endemic crisis).



The criticism by Plato (c. 370 BC) has been the most enduring. From
his perspective, which extolled the application of focused
intelligence and insight by those in power, insistence upon the use of
law in government was 



> 
> 
> like a stubborn, stupid person who refuses to allow the slightest
> deviation from or questioning of his own rules, even if the situation
> has in fact changed and it turns out to be better for someone to
> contravene these rules. (*Statesman* 294b-c) 
> 
> 
> 



Rules themselves were part of the problem: "People and
situations differ, and human affairs are characterized by an almost
permanent state of instability" (*Statesman* 294b). One would use them, only as a (distant) second-best, if one felt
one couldn't discern or trust the appearance of expertise in
political life. These concerns are echoed in the work of modern legal
pragmatists (like Posner 1995) who place much more faith in insight of
judges into new situations than in the application of established
rules or strained analogies with ancient precedents. 



Echoes of the Platonic critique are also heard in those who privilege
decisive executive decision-making in times of crisis, especially if
the crises seem to be successive and unending (Schmitt 1923; Posner
and Vermeule 2010). Someone's will has to prevail and, it is
said, the Rule of Law does us no service by pretending that the
element of will can be eliminated from politics or that decisiveness
matters less than the "long deliberation" that was
extolled in Aristotle's *Rhetoric*.



The sense of what good law-making and ordinary legal administration
require conveyed by the principles of the Rule of Law is sometimes
criticized as archaic. Partisans of the Rule of Law often think in
terms of clearly drafted and prospective measures promulgated as norms
that can stand in the name of the whole community and form a publicly
acknowledged framework for their actions and transactions. But this is
not really how law operates in the modern world. As Rubin 1989 points
out, a great deal of modern legislation consists simply of a
frame-working statute authoring agencies to develop much more detailed
rules which are conveyed to the public--to the extent that is
necessary--by modes of communication much more complex and
nuanced than those envisaged in traditional models of the Rule of Law.
For example, the principles comprised in Fuller 1964's inner
morality of law--see
 section 3.6
 above--are recipes perhaps for the production of legislation
that looks congenial to legalistic concerns about clarity and
predictability. But it has little or nothing to do with the way law
actually operates or the way legislatures communicate with agencies
and agencies in turn communicate with those whose actions and
businesses they supervise (Rubin 1989: 397-408).



At the same time, there are concerns about the mentality that is
fostered by an excessive emphasis on the Rule of Law. In its most
extreme form, the Rule of Law can have the effect of closing down the
faculty of independent moral thought in the officials (the judges, for
example: see Cover 1975) or in the ordinary members of a community,
making them anxious in the face of uncertainty and distrustful of
their own or others' individual judgments (see Henderson
1990). Sometimes it is
important, for the sake of clear and courageous moral judgment, not to
exaggerate the importance of something being required by law. Other
concerns about the mentality fostered by the Rule of Law include
concerns about legalism and the tendency to over-formalize or
over-bureaucratize relationships that are more healthily conceived in
terms that are more informal. This is not just a matter of legalizing
the personal realm; it is also a matter of understanding, for example,
the damage that can be done to relations between officials (like
social workers) and vulnerable clients by replacing bringing in rigid
rules to replace relatively informal professional norms (Simon
1983).

 
## 8. Controversies about Application



As well as these debates about the value of the Rule of Law there is,
within the camp of those who stand for legality, incessant controversy
about what the Rule of Law requires. I have mentioned the general
debates between defenders of formal, procedural, and substantive
conceptions. There are also a number of particular debates.


### 8.1 Discretion



How far should it be the mission of the Rule of Law to eliminate or
reduce the amount of discretion in the way a society is governed? Some
jurists, like Dicey (1885) and to a lesser extent Hayek (1944) insist
that official discretion is inherently antithetical to the Rule of
Law. Others, like Davis (1969), condemn this as an extravagant
position, arguing that discretion is ineliminable in the modern
administrative state. The rule of the Rule of Law is not to eliminate
discretion, but to ensure that it is properly framed and authorized,
and that the application of rules and judicial procedures is preserved
for those cases where liberty and well-being are most seriously at
stake.


### 8.2 Rules and Standards



A similar question arises with regard to the use of norms that have
the character of standards rather than rules. (A rule is like a
numerical speed limit, whereas a standard is like a norm that requires
people to drive at a "reasonable" speed.) Legal systems
use both types of norm (Sunstein 1994); they use standards for cases
where the appropriate decision may vary with ambient circumstances and
it seems better to trust the judgment of those who face a particular
situation, rather than laying it down in advance. There is an element
of respect for individuals' powers of discernment conveyed in
the use of a standard. At the same time standards allow for less
certainty in the law, especially when it is difficult for the person
attempting to comply with the norm to predict how his judgment will be
viewed by an official or by a court. Hayek suggests that 



> 
> 
> [o]ne could write a history of the decline of the Rule of Law ...
> in terms of the progressive introduction of these vague formulas into
> legislation and jurisdiction. (1972 [1944]: 78) 
> 
> 
> 



Whether he is right depends partly on how far we take the Rule of Law
to be wedded to predictability: is predictability the be-all and
end-all, or does the Rule of Law also promise a kind of legal system
that frames and facilitates reason and thoughtfulness in human
affairs?


### 8.3 Law and Social Norms



Sometimes situations can be governed and disputes settled by informal
social norms rather than by positive law, formally enacted and
enforced (Ellickson 1994). Opinions differ as to whether this should
be regarded as something altogether different from the Rule of Law. On
the one hand, it looks like a genuine alternative, and little is
gained by assimilating its desirable features, such as they are, to
Rule-of-Law requirements. On the other hand, it does have something in
common with understandings of customary law and conceptions of the
Rule of Law (like that of Hayek 1973) that try to separate themselves
from enactment and legislation. Also it is sometimes said that the
Rule of Law works best when what is enforced in a society can be
mapped on to its members' norms of fairness and common-sense.
This makes social participation in the integrity and upholding of law
more likely (Cooter 1997). The closer this mapping, the less of an
investment there has to be in formal legal promulgation: ordinary
know-how can become a reliable guide to legal knowledge. However, one
has to be very cautious with this. Modern law is inevitably technical
in ways that far outstrip the possibilities of intuitive understanding
(Weber 1968 [1922]: 882-95). The best that can be hoped for is
some sort of occasional consonance between enacted law and informal
understandings, and the sporadic character of that may well heighten
rather than reduce unpredictability. 


### 8.4 Emergencies



Is it reasonable to use the Rule of Law to evaluate the way a society
responds to emergencies? It is often thought that emergencies require
forms of state action that are more peremptory and less procedurally
laborious than those required in normal times. As a matter of fact, a
number of possibilities have been discussed (Scheuerman 2006). One is
to insist, in the name of the Rule of Law, that existing
constitutional safeguards should remain in force; that, after all, is
what they were designed for and these situations are where they are
most urgently needed. Alternatively, in emergencies, one might rely on
a general spirit of flexibility and circumstantial sensitivity in
state action that is encouraged even in normal times. On this second
option, the Rule of Law does not present itself as a major constraint
on the flexibility of state action in face of danger. As a third
option, one might seek to preserve something like the Rule of Law by
laying down in advance specific legal rules to govern
emergencies--rules that suspend ordinary civil liberties
guarantees for example or authorize widespread discretion on the part
of officials to undertake action that would normally be governed by
general rules of law. (Machiavelli proposed a version of this in his
*Discourses* (1517), extolling the institution of dictator in
the Roman republic.) This option has the advantage of predictability;
but its disadvantage is that it endorses a sort of
Rule-of-Law-*lite*, which may eventually infect or supersede
the conception of the Rule of Law that is supposed to be normally
applicable.


### 8.5 International Law



The Rule of Law applies not only within national polities but also
increasingly between them, but in this arena its use remains
under-theorized (for a helpful discussion, see Crawford 2003). Much of
the work that has been done on the international Rule of Law simply
adopts uncritically the perspective of those who say, at the national
level, that the Rule of Law requires determinacy, clarity, and
predictability (see Chesterman 2008). But this may be misconceived
when we are talking about states rather than individuals as the
subjects of law (Waldron 2011b). States are in a much better position to be informed of
what their legal requirements are than individual men and women in
society, since they are parties to the treaties and practices that
establish international law. (Maybe, though, this point does not hold
to the same extent when we consider the murky depths of customary
international law.)



Anyway, the liberty of an individual state is not such an important
value as the liberty of an individual person. It is not clear that
national states need protection from international law and the power
that it represents in the way that ordinary men and women need
protection from the exercise of political power in society. Moreover,
in areas like international human rights law, any presumption based on
the Rule of Law in favor of the liberty of national states will tend
to have detrimental effects on the liberty or well-being of individual
men and women. We have to be careful therefore that invocation of the
Rule of Law in the international realm does not undermine the values
that are supposed to be secured by this ideal within national
polities.



One additional point. It remains controversial whether international
institutions themselves--like the United Nations and its
agencies--should be bound by the Rule of Law. This odd because
these agencies are among the most vociferous advocates of the Rule of
Law so far as its application to national states is concerned. The
reluctance here stems in large part from an estimation of the
importance of diplomatic immunity. UN officials worry that if they and
their agencies are held legally liable for malfeasances of various
kinds associated with peace-keeping activities, there is a danger that
the whole basis of international action might unravel. The danger is
probably exaggerated, however, and those who make this argument would
not for a moment countenance a similar argument in the sphere of
national states.


### 8.6 Development and Nation-Building



The Rule of Law is often cited as the key to nation-building and to
the establishment of new democracies. Indeed it is often argued (e.g.,
Barro 2000) that a new state needs Rule-of-Law
institutions--effective courts and commercial codes that can
secure property rights and the enforcement of contracts--more
than or even before it needs democratic institutions such as an
elected legislature. It is said that a legal system in a developing
country dominated by legislative action will neither inspire the
confidence nor establish the stability that modern governance and
investment require. (For discussion of these arguments, see Carothers
1998 and--more critically--Carothers 2009.) This raises once
more the question of relation between the Rule of Law and
legislation--only now it takes us also in the direction of
considering an rather uncomfortably direct trade-off between Rule of
Law values and democracy.


## 9. The Rule of Law and the Concept of Law



Finally, an analytic question. What is the relation between the Rule
of Law and the concept of law? A case can be made--controversial,
no doubt--for bringing the two of them together (see Waldron 2008
and also Simmonds 2008). The concept of law could be understood to
embrace the fundamental elements of legality, though this
identification looks less plausible the more substantive the
conception of the Rule of Law is held to be. On this account, a system
of governance doesn't count as law unless it exhibits the
characteristic forms and processes that we associate with legality.
Otherwise we lose our sense of the institutional distinctiveness of
law as a way of ruling a society. We saw earlier that Lon Fuller (1958
and 1964) envisaged a connection along these lines. So, in his later
work did Ronald Dworkin. Dworkin (2004) asked us to consider a
situation in which judges and lawyers were grappling with hard issues
of interpretation or with difficult dilemmas posed by multiple sources
of law. He said that in such cases, we might say that what was
required as a matter of law might be different from what was required
as a matter of justice. That is a familiar separation (even if Dworkin
thought it was narrower and more blurred than most legal positivists
believed). But he said, it would make no sense to say that what was
required as a matter of legality or respect for the Rule of Law was
different from what the legal solution was to this case. To figure out
the legal solution we have to address the various legal and political
materials precisely in light of our commitment to legality. 



> 
> 
> A conception of legality is ... a general account of how to
> decide which particular claims are true.... We could make little
> sense of either legality or law is we denied this intimate connection.
> (Dworkin 2004: 24-5)
> 
> 
> 



However this is not the received position. According to Joseph Raz
(1977) and others you cannot understand what the Rule of Law is unless
you already and independently understand what law is and the
characteristic evils that law is likely to give rise to (which the
Rule of Law tries to prevent). On this account, legality represents a
particular set of concerns about law that have emerged in our
civilization. The fact that these concerns are undoubtedly moral in
character (even though they are not comprehensive moral concerns)
means that--in Raz's view--it is better to keep them
separate from the concept of law itself, for fear of introducing a
moral element into that concept.