Rule by Law: A Much Maligned Preposition

Abstract

Commentators working in the law-and-development field distinguish between the rule of law and "rule by law," with the latter being treated as an authoritarian caricature of the former. Under "rule by law" a regime may use law and legal institutions to control its population, but it will not allow law to be used to control the regime. There are also a number of other understandings of "rule by law," most notably a conception that associates ideologically it with enacted law, as opposed to autonomous law. This paper re-examines the idea of rule by law and suggests that if it is taken at face value it involves the admirable willingness of a regime to submit itself to the discipline of legality. It should not be disparaged, and indeed (like the rule of law itself) it admits of a spectrum of applications, some of them quite demanding.

Keywords: autonomous law, authoritarianism, Carothers, China, Hayek, law-and-development, legality, legislation, prerogative power, Raz, rule by law, rule of law, third source