What is the Rule of Law and Why is It so Important?

Abstract

These reflections on the rule of law consider the rule of law from within the rule of law tradition. This discussion clarifies: (1) what the rule of law is; (2) what the rule of law requires of us; (3) where the rule of law comes from; (4) why it is so valuable; and (5) how we can secure it. Let there be no confusion about the subject matter of this inquiry. The rule of law in its original, best, and most useful sense signifies the "imperium legum" of the ancients, "the empire of laws and not of men" pursued by the early humanists, by the partisans of liberal Enlightenment, and republican revolutions across the globe. This is not the later, positivist, more limited understanding of the rule of law as "Rechtsstaat," which has sapped the rule of law everywhere and caused so much confusion. The rule of law in its original and most natural sense is a pure social good, in which the legalism of the Rechtsstaat plays only a partial and supporting role. Societies that enjoy the rule of law are vastly better situated than those that do not. This makes the real rule of law (or its absence) the central measure dividing good from bad government everywhere. All law and political institutions can and should be evaluated to determine whether it or they advance the rule of law -- or do not.

Keywords: rule of law, liberty, justice, common good, public good, republicanism, imperium legum, empire of laws, Rechtsstaat, humanism, enlightenment, independent judges, republic, domination, tyranny, republican government, despotism, morality, de jure, de facto, independent judiciary, separation of powers

JEL Classification: K10, K30, K40, N40