Rule by Law: A Much Maligned Preposition

24 Pages Posted: 15 May 2019 Last revised: 23 Jun 2019

See all articles by Jeremy Waldron

Jeremy Waldron

New York University School of Law

Date Written: April 25, 2019

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

Suggested Citation

Waldron, Jeremy, Rule by Law: A Much Maligned Preposition (April 25, 2019). NYU School of Law, Public Law Research Paper No. 19-19. Available at SSRN: https://ssrn.com/abstract=3378167 or http://dx.doi.org/10.2139/ssrn.3378167

Jeremy Waldron (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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