The Rule of Law
Forthcoming in R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press, 2024)
36 Pages Posted: 22 Jun 2023 Last revised: 26 Jun 2023
Date Written: June 21, 2023
The rule of law is a normative political ideal. This essay presents two approaches to understanding it. The first is the legal essentialist approach, which derives an account of the rule of law from an account of the essence of legality and legal systems. The second is the limited government approach, which derives an account from a normative theory proposing a role for law in opposing and negating the arbitrary power of persons over others. The chapter contends that the latter approach is more persuasive than the former. However, and despite recent refinements, the approach has a legacy of libertarian thinking and has not acknowledged what the author of this essay refers to as a regulatory conception of the rule of law which has a prominent social dimension. The social dimension entails a duty founded upon the rule of law ideal to legally regulate private arbitrary powers whose exercise allows some to impose coercion as well as non-consensual exploitation on others. The regulatory conception and its social dimension help us understand the appropriate relationship between the rule of law and human rights, the welfare state, and democracy.
Keywords: rule of law, formal and substantive conceptions, arbitrary power, Hayek, rule of law and welfare state, protective function of law, rule of law and concept of law, essence of legality, rule of law and human rights, rule of law and democracy
Suggested Citation: Suggested Citation