A Rule of Law Explainer

I was at a conference recently with several sessions dedicated to topics related to the rule of law. A depressing number of participants made some snide remark along the lines of “no one knows what the rule of law means,” or “the rule of law can mean pretty much whatever you want it to mean.” There are plenty of empty signifiers tossed around in public debate nowadays – think of “woke,” “DEI,” or “weaponization,” for example. Some of the emptiness comes from the concerted effort by political opponents to delegitimize a concept, or to appropriate a critical concept for one’s own use. But sometimes there is genuine uncertainty.

Most of the people I hear claiming that the rule of law can mean anything at all aren’t acting in bad faith. The term has been used in a lot of different ways, from the English constitutional theorist A.V. Dicey’s celebration of common law remedies over constitutional guarantees of rights, to the prolific reference by institutions like the World Bank to the rule of law as a means of furthering economic development. American constitutional lawyers often cite the phrase “government of law, not men,” back to the 1780 Constitution of the Commonwealth of Massachusetts, drafted by John Adams. But what does any of this have to do with the present moment, and the frequent assertions that actions of the Trump administration are threatening or undermining the rule of law in the United States? Here’s where it would be helpful to take a look at the extensive legal philosophy literature on the rule of law.

As Chidi Anagonye’s friends in The Good Place frequently reminded him, everybody hates moral philosophers.

I’m sure legal philosophers aren’t any more welcome at parties, but they do have something to offer for people who are wondering if the term “rule of law” has any agreed-upon meaning. The claim I want to explore here is that, while definitions of the rule of law vary quite a bit in detail, there’s a common core of normative significance to the distinction between arbitrary or brute power, on the one hand, and legally authorized actions, on the other.

At least in the U.S., where Dicey’s influence has been practically nonexistent, most discussions of the concept of the rule of law start with the Hart-Fuller debate, which all first-year law students used to learn about. That exchange was about the concept of law, not the ideal of the rule of law, and mostly had to do with whether unjust or immoral laws could properly be called laws. The abuses of the Nazi regime were in the foreground of the debate, and one of Hart’s targets was the German legal theorist Gustav Radbruch, who claimed that Nazi laws were legally invalid because they were morally wicked. In The Concept of Law (1961, revised a couple of times since then), Hart defended the thesis of legal positivism, that it is possible to employ criteria of legal validity that refer to the social sources of a law, not its moral merit.1 If a piece of legislation was passed by both Houses of Congress and signed by the President, then it’s a law even if it’s a stupid or evil law. Pretty standard stuff.

To this, Fuller had an interesting – or, in the view of many legal philosophers, deeply confused – response, in The Morality of Law (1964). He said law has an “inner morality,” corresponding with principles of legality. These are that law should exhibit certain formal features. He had a list of eight, illustrated with a cute story about a well-meaning but clueless ruler who kept trying to make law for his kingdom and failing. These features are: 1. Generality 2. Publicity 3. Prospectivity 4. Intelligibility 5. Consistency 6. Practicability 7. Stability 8. Congruence. Here is Waldron’s helpful summary of the formal characteristics often cited as elements of the rule of law (Thoughtfulness and the Rule of Law, p. 160):

Legal philosophers tend to emphasize formal elements of the rule of law, such as rule by general norms rather than particular decrees; rule by laws laid down in advance rather than by retrospective enactments; rule under a system of norms that has sufficient stability (is sufficiently resistant to change) to furnish for those subject to the norms a calculable basis for running their lives or their businesses; rule by norms that are made public, not hidden away in the closets of bureaucracy; rule by clear and determinate legal norms, norms whose meaning is not so obscure or contestable as to leave those who are subject to them at the mercy of official discretion.

A law that exhibits these features is a good law . . . in what sense? Well, it’s good as law, at doing the things the law is meant to do. For Fuller, that is providing guidance. A law that was not publicly available, understandable by its subjects, capable of being complied with, stable from day to day, etc., would be pretty lousy at guiding conduct.

But is that a morality? In an influential chapter in his 1979 book, The Authority of Law, called “The Rule of Law and Its Virtue,” Hart’s greatest student, Joseph Raz, cautions that legality, in the formal or procedural sense, is only one property that law may possess or lack in varying degrees, but it should not be confused with other things we may care about. Law may be a goodness-fixing kind (and here I’m using the terms from a paper by my colleague Emad Atiq), but what counts as better or worse law may or may not have anything to do with its justice. Raz writes:

The rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man.

Raz’s claim here, following and tightening up on the arguments of Fuller, is that law is merely a tool, and the rule of law, understood on these formal lines, may only amount to an evaluation of efficacy – that is, how good the tool is at doing tool stuff, whatever that may be. As Fuller saw it, the formal criteria of legality are derivable from the law’s objective of providing effective guidance. The trouble is, a wicked legal system as much as a just legal system may provide guidance, and the evil ends of a government may be accomplished by laws that are general, consistent, prospective, etc.

In a famous (or notorious) passage, Raz wrote:

A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies . . . It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law . . . The law may . . . institute slavery without violating the rule of law.

Fuller believed that a law that satisfied the formal criteria of legality was unlikely to be morally wicked. As many scholars have said, there’s no real reason to believe that – it’s wishful thinking on Fuller’s part. A lot of really terrible laws have had the features of clarity, intelligibility, prospectivity, etc. (Consider the Fugitive Slave Laws, for example, or legal segregation in the Jim Crow South.) Raz’s understanding of the rule of law is just a hard-nosed appreciation of this point. Efficacy is one virtue a legal system may have, but it must be rigorously distinguished from the justice of the system.

One well known response to this procedural way of understanding the rule of law was given by the former Lord Chief Justice of England and Wales, Tom Bingham (Lord Bingham of Cornhill) – the Brits have great titles.2 Bingham contended that no legal system deserved to say it respects the rule of law unless it provides adequate protection for fundamental human rights. Bingham had a tart response to Raz (The Rule of Law, p. 81):

A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.

Bingham’s position is a substantive, as opposed to formal (or procedural) conception of the rule of law. However, it is vulnerable to the objection that it confuses legality with other virtues, such as justice or the protection of rights. A sharper version of the objection is that people tend to want to pack their favorite features of a legal system – such as its capacity to provide protection for fundamental human rights – into the concept of the rule of law. This turns the rule of law into an all-purpose “hooray!” kind of appraisal, but drains it of content.

The other problem is, substantive conceptions of the rule of law become highly contestable. Bingham cheerfully concedes that “there is no consensus, on the rights and freedoms which are fundamental, even among civilized nations. In some developing countries a higher premium is put on economic growth than on protection of individual rights.” My colleague Emad Atiq argues that there is surprising agreement among legal philosophers that law is the sort of thing that can be evaluated as better or worse based on certain characteristics. It’s just that there’s a lot of disagreement over what those characteristics are!

Presumably this is what this is what people mean when they say the rule of law can mean lots of different things. But in the last maybe 15-20 years, there has been a remarkable convergence among legal philosophers on the insight that the rule of law, as a particular mode of governance, is morally valuable because it involves the government in responding in the right way to the interests and status of the governed. The moral core of the rule of law is a recognition that the people subject to legal authority are free and equal, bearers of dignity, and moral agents, capable of reasoning and self-application of law. Therefore, they should be addressed with principled reasons, not merely coerced into compliance by the arbitrary exercise of power.

My take here is a mashup of the works of scholars I have been influenced by. One way to think about it is splitting the difference between the formal and substantive conceptions of the rule of law. Or you might think of it as seeing the purpose of the law, which gives criteria for evaluating the law as better or worse, in terms of serving the ends to which the law is put by its subjects – the members of a political community. I’m not claiming to give a reconstruction of the position of any one of them, but I want to acknowledge the importance of:

1. Jeremy Waldron’s work on the rule of law, particularly the paper, “The Concept and the Rule of Law,” 43 Ga. L. Rev. 1 (2008), which I cite constantly. That paper is now a chapter in a valuable collection called Thoughtfulness and the Rule of Law (Harvard U. Press 2023). When he taught me in graduate school, Waldron directed me to the Epilogue to Whigs and Hunters by E.P. Thompson, the English historian who got crosswise with some of his fellow Marx-influenced social historians by claiming that the rule of law is an “unqualified social good,” and it has influenced my thinking about the subject ever since.

2. An outstanding recent book by Gerald Postema, Law’s Rule: The Nature, Value, and Viability of the Rule of Law (Oxford U. Press 2022). I’m inordinately proud that Postema quoted my thumbnail definition of the rule of law (p. 8): The little guy can say to the big guy, “Hey, you can’t do that to me!” I want to make sure, however, to attribute that line to the Japanese legal philosopher Yasotomo Morigiwa, who taught it to me. Anyway, Postema’s book is different from Waldron’s in being written from the ground up, not a series of papers, but the two books are remarkably similar in their themes.

3. One of my favorite works of David Luban’s (and this is saying a lot, because he has written so many good things), Chapter 3 of his book, Legal Ethics and Human Dignity, called “Natural Law as Professional Ethics: A Reading of Fuller,” where he argues that Fuller wasn’t mistaken at all in talking about the inner morality of law, but to understand what he was talking about, it’s necessary to see it as a principle of the ethics of lawyers as advocates and advisors.

4. A more recent paper by Joseph Raz, updating his position on the rule of law, “The Law’s Own Virtue,” 39 Oxford J. Legal Stud. 1 (2019).

The core idea is that a mode of governance that aspires to the status of “rule of law” is a morally good way of organizing the affairs of a human community, because it (quoting Waldron) operates “by using, rather than suppressing and short-circuiting, the responsible agency of ordinary human individuals. Ruling by law is quite different from herding cows with a cattle prod or directing a flock of sheep with a dog” (“Concept and Rule of Law,” p 26). The key idea here is moral agency: People have capacity “for practical understanding, for self-control, and for the self-monitoring and modulation of their own behavior, in relation to norms that they can grasp and understand” (pp. 26-27).

Postema puts the point in terms of the moral wrong of subordination, which is being subject to the arbitrary will of another (Law’s Rule, p. 87). Subordination is a relational wrong, which both parties experience as a relationship of inferiority and superiority. Subordination occurs when one exercises power arbitrarily. The arbitrary exercise of power that is the antithesis of the rule of law is “utterly indifferent to rules or reasons” (p. 29).

The exercise of arbitrary will denies the dignity of the subjects of government authority. The law should aim to protect dignity, understood this way:

Dignity is the standing that is due a person, a rightful position a person occupies vis- à- vis others. One whose dignity is respected can stand eye to eye with others in one’s community; one can demand this respect in one’s own right (p. 89).

The idea of standing eye-to-eye with others in one’s community is what Tomo Morigiwa is getting at with the image of empowering the little guy to say to the big guy, “Hey, you can’t do that to me!” Law is one of the only mechanisms of social control that has that feature, at least if it does things in the right way, which is to say, in accordance with the ideal of the rule of law.

More granularly, how does this work? The law seeks to respect human dignity, and to manifest respect for its subjects as moral agents, by insisting on reasons in support of official or private action. Citing the Scottish legal philosopher Neil MacCormick, Postema differentiates arbitrary power from legally authorized power according to whether the grounds for the exercise of power can be identified through deliberative reason (p. 42):

The rule of law demands that all exercises of ruling power must be warrantable under the law – officials must have sound legal grounds for their actions, and their claims to act with warrant must be open to challenge. Mere assertion of warrant is never sufficient from the point of view of the rule of law.

Lawyers probably noticed the key phrase in that passage, “warrantable under the law.” Many lawyers seem to have learned the wrong lesson from 1L classes in which the Socratic method seemed to demonstrate that any argument is equally plausible. But now bringing in Luban’s point about professional ethics, the capacity of the law to manifest respect for human dignity depends on a commitment by legal professionals to seeking to determine what the law actually permits, as opposed to what someone may get away with through sheer bullying or intimidation.

Again quoting Postema, for the rule of law to exist in a society, law has to count in deliberations (p. 135):

Law counts when people in the community regard law as an important normative resource; it counts when they use law to plot the trajectories of their interactions with each other and with the authorities, and as a basis for assessing the conduct of others, especially officials.

Postema cites the Australian legal philosopher Martin Krygier, who in turn relates a Bulgarian saying that law is like an door in an open field – you can walk through it, but what’s the point? Although Postema’s book was published before the second Trump administration, his description of the antithesis of fidelity to the rule of law is resonant today (p. 135):

Especially among the economically or politically powerful, the attitude may take hold that to follow the law voluntarily is something only morons do and that to be subject to the law is a sure signal of weakness.

Trump himself embodies the attitude that only morons would follow the law voluntarily and to do so would be a sign of weakness. He notoriously said, in his first term, that “I have an Article II, where I have the right to do whatever I want as president,” seemingly unaware of the Take Care Clause in Article II

Why, again, is this a moral wrong? Because it denies the dignity of Americans who deserve to be treated like adults, and given reasons for government actions – reasons that do not reduce to “so who’s going to stop me, huh?” Donald Trump renaming the Kennedy Center for the Performing Arts the “Trump Kennedy Center” is an act of arbitrary will because it is completely indifferent to the legal reason that Congress created the Center as a “living memorial to John Fitzgerald Kennedy.” Trump slapping his name on the building is, in effect, treating all of us like we’re very young and clueless children, incapable of understanding the reason that Congress did this for the purpose of honoring JFK, and him alone (dist. ct. opinion, p. 51). Being treated by the president like a bunch of idiots is a dignitary wrong. I’m not saying it’s a legal wrong, but it is a morally deficient way for the government to relate to the American people to whom government officials owe fiduciary duties.

When people say the rule of law is eroding under, or is threatened by, the second Trump administration, what does that mean? There are some obvious candidates, relating to some of the traditional features of the rule of law. For example, just about any discussion of the rule of law will include the accountability of the governors themselves to the law; this is a feature of the Western political tradition going back to Magna Carta. So, when Trump’s Acting Attorney General announces that Trump and his family will be exempt from tax audits by the IRS [gift link], one natural response is to see this as a thumb in the eye of the rule of law.

I’m interested in the more subtle, but more pervasive contempt for the rule of law exhibited by Justice Department lawyers. If the moral core of the ideal of the rule of law is reason-giving, which manifests respect for the dignity of the subjects of law, then one of the deepest affronts to the dignity of the governed is the refusal to give reasons at all for official actions, or – more frequently – to offer justifications that anyone can see are bullshit. The administration insists that immigrants picked up by ICE are “the worst of the worst” – murders and rapists – while only a miniscule portion of detainees have a criminal record at all. Chicago, Minneapolis, Portland, and other American cities are in the grip of riots and civil disturbances that cannot be contained by local law enforcement. The Venezuelan boat strike campaign continues, with the administration insisting that it knows the boats are carrying fentanyl for the Tren de Aragua gang, which is somehow involved with former Venezuelan leader Nicolás Maduro, who was abducted in January. Venezuela is engaging in an invasion or predatory incursion of the United States. Former FBI Director James Comey subjectively intended to threaten to kill the president when he spelled out “86 47” in seashells on a North Carolina beach. The boastful, combative statements of Trump and his spokespeople often find their way into the briefs and oral arguments by government lawyers. True, courts have means of dealing with this, and one striking pattern in the second Trump administration is the explicit denial by district courts of the presumption of regularity and the refusal to believe factual representations made by DOJ lawyers.

Obviously I am not the first commentator to notice the administration’s disdain for factual truth, and like many others I’ve written about Harry Frankfurt’s concept of bullshit as applied to this administration, but it’s important to see this as a rule-of-law issue. Displaying contempt for facts is a way of manifesting lack of respect for others as rational agents. It denies the standing of others – their entitlement to stand eye-to-eye with the governors and be treated as a responsible adult.

Another important and underappreciated theme that recurs in the works of Luban, Waldron, and Postema is that the rule of law vs. rule of men people contrast is spurious, because the rule of law must proceed through human agents. Laws are applied and interpreted by judges, lawyers, and political officials. Luban argues that Lon Fuller was thinking about transactional lawyers, not litigators, when he talked about lawyers as architects of social structure. The rule of law (and by law), in the sense of ordering the affairs of a community so that law counts and arbitrary power is inhibited, requires the commitment of individual lawyers and judges to sustain a system of institutions and practices that aim at the goal of giving publicly available reasons in justification for exercises of government power. There are clear examples, like straightforward lying or ignoring procedures designed to protect the integrity of grand juries, that can be made the subject of professional disciplinary actions. Other violations may be more complex and harder to fit within a specific rule of professional conduct, but run contrary to important norms and traditions that are part of the broader subject of legal ethics.

Anyway, that’s my reaction to the idea that the rule of law can mean anything at all or is just an empty phrase that people toss around when they want to criticize an official action they don’t like. There is a remarkable scholarly convergence on what the ideal of the rule of law means and its normative significance: Just think about Aretha Franklin demanding R-E-S-P-E-C-T. That’s what we’re owed as citizens of a democracy committed to the rule of law and one thing lawyers should do is insist on respect, in the form of giving principled reasons and not treating us like a bunch of idiots. That’s a pretty powerful idea, not just a slogan.