Challenges to the rule of law

Anyone who holds that what matters most in politics is having the right people in power and not how power should be constrained will be unconvinced of the value of the rule of law. Neither will anyone who believes that institutions of public power are merely instruments of the ruling class that need to be dismantled rather than merely constrained. For the majority of modern democratic societies, however, the rule of law’s requirement that both rulers and the ruled be accountable to the law is of unquestionable value. To be sure, in the modern world, it is the liberal tradition that values the rule of law most highly. Liberals who are concerned with ways of protecting (and realizing) liberty in some form and averting threats to it view the rule of law as an overarching source of security. Nonetheless, there is substantial disagreement even among liberals over what exactly counts as a faithful application of the term and, even when that is pinned down, how it is to be accomplished.

In itself, the notion of the rule of law is not a faithful description of any state of affairs but a complex ideal that is even more complex to realize. Thus, there is reason to be skeptical about whether societies necessarily benefit from all that might be invoked under the term. The independence of the judiciary, for instance, is clearly a problem if the independence is misused to foster the sectoral privileges of judicial personnel or to allow unchallenged interpretations of the law. Heavy emphasis on the formal aspects of the rule of law—for example, on procedural justice—may distract from the content and consequences of those laws. Critics of a strictly formal conception of the rule of law argue that too much attention to legal process generates significant vices of its own in the form of exaggerated legalism and neglect of the political or real-world dimensions of legal conflicts. Excessive veneration of the law and legal procedures may be too costly if it inhibits independent social assessments of the merits of a given policy proposal or if the official mandate of “blindness” gives legitimacy to actions performed “according to the law” even when most people would oppose such acts. Some writers have charged, moreover, that the increasing domain of judges and lawyers—indeed, their encroachment into areas previously left to politicians and the electorate—entails the loss of much that is politically and democratically valuable.

In short, too much emphasis on procedures for preventing arbitrariness can lead to subverting the doing of justice according to what might otherwise find support in the rule of law, and the legal strictures then become themselves a form of arbitrariness that is no more legitimate. On the other hand, those who defend the negative value of the rule of law object to more substantive understandings of the ideal on the grounds that morally ambitious aspirations about the rule of law threaten to purge the concept of its specificity and usefulness. They argue that to open the concept to a whole host of extralegal considerations about substantive justice and wider societal goals is to conflate ideas about “the rule of law” with notions about “the rule of good law,” such that any distinction between the two is reduced to nothing. As a consequence, no discussion of the rule of law can be complete without some philosophical reflection on law, including on its purpose and meaning.