The Rule of Law: What It Demands and Why It Is Fragile
Every society has rules; few achieve the rule of law. The phrase names a demanding ideal: that power be exercised through law, that law bind the powerful as it binds the weak, and that disputes be settled by independent courts applying known rules rather than by the pleasure of officials. Aristotle preferred the rule of law to the rule of any individual, reasoning that passionless law sees what passionate men cannot. Medieval writers put the king under God and the law; modern constitutions put every official under a document.
The ideal comes in two strengths. Thin or formal versions demand only that law be general, public, prospective, clear, stable, and actually followed by officials. Thick versions add substance: human rights, democratic legitimacy, access to justice. The Victorian scholar A.V. Dicey gave the English tradition its classic statement, stressing the supremacy of ordinary law over arbitrary power, the equal subjection of all citizens to the same courts, and the growth of constitutional rights from ordinary judicial remedies.
Key Points
- The rule of law means government through known, general, prospective rules applied equally.
- Thin accounts stress formal legality; thick accounts add rights and democratic substance.
- Independent courts and honest administration are its indispensable machinery.
- It differs from rule by law, where rulers use law as a tool without being bound by it.
- Its erosion is usually gradual: emergencies extended, courts captured, exceptions normalized.
The machinery of legality
A government of laws, not of men.
The old American slogan captures the aspiration, and jurists have itemized its working parts. Joseph Raz listed demands such as prospective and stable legislation, independent courts, open hearings, and constrained discretion. Lon Fuller argued that a regime which fails these tests badly enough, ruling by secret, retroactive, contradictory, or impossible commands, has not merely bad law but no law at all, because law is the enterprise of subjecting conduct to rules. The formal list is not morally empty: publicity and prospectivity respect citizens as agents who can plan their lives, and they strip rulers of their favorite excuse.
Formalism has limits, as its critics insist. A regime can enact wickedness in perfectly general, prospective form; apartheid was legislated with lawyerly care. That is why thick accounts insist the rule of law must protect dignity and rights, not merely predictability.
Why it is fragile
The rule of law has no army; it rests on habits: officials who obey courts, majorities who accept losses, citizens who believe the game is fair. These habits decay quietly. Emergencies are declared and prolonged; courts are packed or bypassed; retroactive measures target opponents; selective enforcement rewards friends. Each step can be dressed in legal forms, which is why the ideal's enemies usually arrive claiming to defend it. Its defense is equally mundane: independent judges, free presses, honest elections, professional bar associations, and a public that notices. Economists prize it for the predictability it gives markets; citizens prize it for the dignity it gives daily life. This overview is educational and not legal advice.
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