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From Krygier, M., 2015. Rule of Law (and Rechtsstaat). In: James D. Wright
(editor-in-chief), International Encyclopedia of the Social & Behavioral Sciences,
2nd edition, Vol 20. Oxford: Elsevier. pp. 780–787.
ISBN: 9780080970868
Copyright © 2015 Elsevier Ltd. unless otherwise stated. All rights reserved.
Elsevier
 Author's personal copy

Rule of Law (and Rechtsstaat)

Martin Krygier, University of New South Wales, Sydney, NSW, Australia; and Regulatory Institutions Network,
Australian National University, Acton, ACT, Australia
Ó 2015 Elsevier Ltd. All rights reserved.

Abstract

In all its many versions, the rule of law has to do with the relationship between law and the exercise of power, particularly
public power. As an ideal, it signals that law can and does well to contribute to articulating, channeling, constraining, and
informing – rather than merely serving – such exercise. Beyond that, what it rules out, what it allows, what it depends on, and
indeed what it is, are all matters of disagreements that stem from differences among political and legal histories and traditions,
and reflect dilemmas and choices that recur, in different forms and weights, in many such histories and traditions. This article is
concerned with these enduring themes, dilemmas, and choices, as they occur within particular traditions, especially the
common law ‘rule of law’ tradition, on the one hand, and the Continental Rechtsstaat tradition, on the other.

From the last quarter of the twentieth century, the rule of law of which is nicely captured by Otto Kirchheimer’s laconic
has come to occupy an increasing amount of discursive space, observation that:
not only among lawyers, for whom it had been an old theme,
but also among promoters of economic development, human
for all the differences in historical roots and particular legal tradi-
rights, democratization, state building, and political and legal
tions their common denominator lies in the simple thought that the
reform. Increasingly, it is alleged, the rule of law is a key security of the individual is better served when specific claims can be
ingredient in the attainment of all these good things and addressed to institutions counting rules and permanency among
others. As one author has observed, their stock-in-trade than by reliance on transitory personal relations
and situations. Beyond that, a good part of their common success
probably lies in the mixture of implied promise and convenient
vagueness. (Kirchheimer, 1992; first published 1967: p. 244)
Among a plethora of development and security agencies, a new “rule
of law consensus” has emerged. This consensus consists of two
elements: (1) the belief that the rule of law is essential to virtually
every Western liberal foreign policy goal – human rights, democracy, In all versions, the rule of law has to do with the relation-
economic and political stability, international security from terrorist ship between law and the exercise of power, particularly public
and other transnational threats, and transnational free trade and power. As an ideal, it signals that law can and does well to
investment; and (2) the belief that international interventions, be contribute to articulating, channeling, constraining, and
they through money, people, or ideas, must include a rule-of-law
component. (Call, 2007: p. 4) informing – rather than merely serving – such exercise. That
takes us some distance from those who see law simply as one of
the means by which power is exercised, neither better nor worse
In this transformation, the rule of law has gained a great than any other. For there are lots of ways to exercise power;
deal in modishness but less, actually nothing, in clarity. partisans of the rule of law insist that it helps us block some of
But clarity was never the concept’s strong suit. Like many them, including many of the worst of them (see Rundle, 2009),
other important moral, political, and legal ideals, among and to channel others in salutary directions and ways. But what
them democracy, justice, and liberty, its meaning, scope, it rules out, what it allows, what it depends on and indeed what
conditions, and significance are all highly, perhaps essen- it is, are all matters of disagreement. This is so for several
tially, contested (Waldron, 2002). And like those ideals, not reasons, often stemming from differences among political
only are there enduring common themes but also common and legal histories and traditions, and reflecting dilemmas
axes of argument and disputation that pervade discourse on and choices that recur, in different forms and weights, in
the rule of law. As suggested elsewhere (Krygier, 2011: many such histories and traditions.
p. 69), these contests do not render such concepts
meaningless or useless. On the contrary, some of them are
the most important we have. We will not resolve those Law and State
contests, here or anywhere, but it might be possible to clarify
a few of them and suggest why they – and the rule of law – These days, and in contemporary language, the words ‘law’ and
are important. ‘state’ are rarely far apart. However, it was not always and
The concept of the rule of law embodies ideals that have everywhere so, and even now it makes a difference whether the
figured in political and constitutional discourse at least since connection is seen as necessary or contingent, even more so
Aristotle, who contrasted ‘the rule of the law’ with ‘that of any whether it is seen as a conceptual rather than an historical
individual.’ Those ideals have varied, so too the strategies to connection. A clue to this comes from the terms used in various
achieve them and the verbal formulation of them. They revolve languages. In particular, there is an obvious semantic difference
around enduring themes and concerns; however, the character between ‘rule of law,’ the term used in English, and those found

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Rule of Law (and Rechtsstaat) 781

in many European languages to cover some, but not all, of the connection between the term ‘rule of law’ and those thoughts
same terrain. Each of these has a context and a history that came to displace other descriptors, primarily as a result of the
cannot be ignored or simply elided, but in a host of European hugely influential late nineteenth century work by A.V. Dicey
languages there is one thing commonly built into the concept, (Dicey, 1961 (first published 1885)). Dicey’s formulations
which is missing from the English phrase: the State. Whether it distilled (and in some respects distorted) a very old English
is Rechtsstaat (German: state of law; law-governed state), état de legal tradition.
droit (French), statto diritto (Italian), estado de derecho (Spanish), No parallel existed in the nineteenth and early twentieth
panstwo prawa (Polish), or pravovoe gosudarstvo (Russian), century Rechtsstaat. The term was coined only at the very end of
law is inextricably connected to the state. It is the subject – the eighteenth century (Heuschling, 2002: p. 29), to capture
grammatically and ontologically – of each rendition. How- a new phenomenon, the modern State with its monopoly of
ever, unlike all these terms, the rule of law does not mention force. That state was the subject of this concept, and also the
the state. This is not an accident. legal source of law. The Rechtsstaat ruled by or through law,
The concept of the state is not part of English constitutional whereas other states, such as the Machtstaat (power-governed
jurisprudence, while in Australia and the United States it refers state) or Polizeistaat (police-governed state) (see Raeff, 1983)
to what Germans would call Länder (see MacCormick, 1984: might dispense with it and exercise power in other ways.
p. 65). More deeply, the English tradition was long pluralistic What was distinctive of a Rechtsstaat was not that the state
in its conceptions of the sources of law (Rosenfeld, 2001), was subject to law that had other sources and independent
with multiple cumulative and competing authoritative guardians, but that it acts in a rechtlich (lawful, legal) way;
sources, among them custom, court decisions and statutes. “according to some nineteenth century (and early twentieth
Indeed, while the common law courts were long agents of century) constructions, there is a relation of near-identity
the Crown, some of the mythologically most powerful between the state and its law . within the system of rule the
contests in the English rule of law tradition, particularly the law is the state’s standard mode of expression, its very language,
constitutional struggles of the seventeenth century, pitted the essential medium of its activity” (Poggi, 1978: p. 102). That
them against successive wearers of that Crown, even at the is how we recognize it as a Rechtsstaat, as distinct from any other
cost of the head of one of those (Charles I), what might in type of state. There was no conceptual space to say to the State
other countries be called the head of State. what Sir Henry Bracton already said in the thirteenth century:
According to the common law tradition, popular custom, an
“ancient collection of unwritten maxims and customs”
(Blackstone [1765–69] 1979, vol. 1: p. 17) was long seen as The king has a superior, namely God. Also the law by which he is
made king. Also his curia,namely the earls and barons, because if he
a primary source of law, and “[t]he only method of proving, that
is without bridle, that is without law, they ought to put the bridle
this or that maxim is a rule of the common law, is by showing upon him. (quoted in Reid, 2004: p. 11, and see Palombella, 2010;
that it hath been always the custom to observe it” (Blackstone passim)
[1765–69] 1979, vol. 1: p. 68). That custom was evidenced
(rather than made, it was claimed) by another nonlegislative
source, the judgments of courts in particular cases brought to That is an important rule-of-law claim.
them. This was the ‘common law’ (Krygier, 1998), which
seventeenth-century partisans of the rule of law preferred to
the commands of the King; “Law established by customary Arbitrary Power: Uncontrolled or Unruly
practice, law that was not the creation of will, command, or
sovereignty, was a restraint on government – a restraint on That the law should rule even over the most powerful people
discretionary power” (Reid, 2004: p. 12). True, the courts were and institutions is a very old theme in the English legal tradi-
the King’s courts, but the law they adjudicated was not, in the tion. The rule of law is commonly contrasted with arbitrary
main, considered to be the King’s creation. It was not just an exercise of power; that, above all, is the evil that the rule of law
instrument with which the Crown and the state could direct is supposed to curb. This leads to another difference, this time
activities and control public policy. For the King, like his masked rather than revealed by semantics. For arbitrariness is
subjects, was subject to ‘the law of the land.’ itself an ambiguous concept. Is it, for example, ‘uncontrolled
Deliberate, secular, purpose-guided, prosaic (not sacred) interference’ or ‘interference that is not subject to established
legislation, as Max Weber observed, is a central and distinctive rules’ (Pettit, 2012: p. 58)? These are two of several (see
characteristic of modernity in law (see Weber, 1968: pp. 760– Richardson, 2002; Chapter 3) conceptions of the concept.
768). Today, of course, in its exponential rush since the eigh- They have particular relevance to law; the former commonly
teenth century (see Lieberman, 1989), legislation has swamped being referred to as ‘government under law,’ the latter as
custom and even judicial decisions as a quantitatively primary ‘government by law.’ If one had to choose, there are strong
and increasingly imperious source of law, in the common law arguments to favor the former over the latter (see Pettit,
world as elsewhere. However, the notion that the rule of law 2012), but ideally one would encounter the first always, and
draws upon sources other than legislative fiat (i.e., an order in exercises of public power the second as well. Not everyone
for an act to be carried out), that the judiciary is opposed to ‘arbitrary power’ has had both these senses in
a fundamental guardian of it, and that all, even the most mind, however.
powerful, are and should be subject to it, goes deep in the As we saw, the common law tradition, from at least the
common law tradition and has not lost resonance. It was thirteenth century until well into the eighteenth, maintained
expressed in many ways over centuries, but the canonical that the king was subject to a law that he had not made, indeed

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782 Rule of Law (and Rechtsstaat)

that made him king. For the king, for anyone, to ignore or tradition frequently, and in the seventeenth century
override that law was to act arbitrarily (see Reid, 2004; vociferously, conceived of individual rights as protected by
Palombella, 2010). Liberties, and procedures to protect them the courts against the Crown, whereas no such opposition
such as habeas corpus and due process, were enshrined in existed in the German conception of the Rechtsstaat (see
that law, and encroachment on such liberties was barred, Rosenfeld, 2001: p. 1319), which, as Leondard Krieger shows,
even to the monarch, by the law. That that law was often not projected “older national assumptions which made the idea
expressed in clear, prospective, general rules (see Maitland, of liberty not the polar antithesis but the historical associate
1965; first edition 1908: p. 383), today regarded as the of princely authority” (Krieger, 1957: p. 5). The contrast is
essence of the rule of law, was not to the point (Reid, 2004). deep. As Gozzi observes:
Indeed, given the customary, dynamic, fluxful, and
evolutionary character of the common law as theorized by its
In Germany . the doctrine of the Rechtsstaat precludes the possi-
adepts, it was beside the point (see Postema, 1986; Chapter
bility of the primacy of law over the state. Indeed, it is precisely in the
1). The issue was that it was superior. relationship between law and state – which in the German case is
From the eighteenth century, however, law came to be settled with the primacy of the state – that the most significant
viewed increasingly as the direct or indirect product of the feature of the doctrine of the German Rechtsstaat emerges.
political legislator, the ‘sovereign,’ and in English law there was, Conversely, the English doctrine of the government of law is most
clearly distinguished by grounding the rule of law on the superiority
at least arguably until very recently as a result of EU member- of law as proclaimed by the courts of justice. (Gozzi, 2007: p. 238)
ship, no legal superior to the sovereign legislator. The
conception of the rule of law gradually became more preoc-
cupied with the character of the rules that the sovereign enac- From the point of view of those subject to the exercise of
ted: they should be clear, prospective, consistent, etc. power, both its control and its manner of exercise, government
Shocked by this downgrading of the notion of a law supe- under and by law, are important. But they are not the same.
rior to the sovereign, and by what they regarded as their own A state could be controlled but act under decrees with quite
‘arbitrary’ treatment by the British sovereign Parliament (Reid, particular targets, kept secret from citizens, or inconsistent
2004), the American colonists first staged a revolution, and with each other, or retrospective, or without any decrees, let
then a pathbreaking innovation: a written constitution alone laws, at all. It could, conversely, be uncontrolled but act
binding on the legislator, and in due course routinely through promulgated, clear, consistent etc. laws. In either case,
overseen by an independent Supreme Court, whose decisions something significant would be lacking. For where arbitrari-
also came to be seen as binding on the legislator. This was ness in either of these senses is linked with significant power, it
a novel way of vindicating a very old principle. In England, at the very least raises the reasonable apprehension that it will
old conceptions persevered, but in increasing tension with tend to: threaten the liberty of anyone subject to it; generate
the legislative bias of modernity. reasonable and enduring fear among them; and deprive citi-
On the Continent, things were different. A Rechtsstaat was not zens of sources of reliable sources of expectations of, and
just any sort of state, as we have seen, but one which operated on coordination with, each other and with the state. And as Lon
the basis of legal rules configured in particular ways. “[S]ituated Fuller (1969) and Jeremy Waldron (2011a) have
at the heart of the theory of the Rechtsstaat is the question of the emphasized, it threatens the dignity of all who find
arbitrariness of power, of the potential violence inscribed in all themselves mere objects of power exercisable at the whim or
relations of domination, whether private or public” caprice of another.
(Heuschling, 2002: p. 42). However, partisans of the Rechtsstaat These are four good reasons to value reduction of the
did not envisage a law superior to the state, a basis for appeal to possibility of arbitrary exercise of power (see Krygier, 2011:
some higher notion or other source of law. Law was pp. 79–81). There may well be many others, such as those
a characteristic of the Rechtsstaat, but it was also its product. that commend themselves to many economists, having to do
The nonarbitrary rechtlich quality of the state was a matter of with the alleged contribution of the rule of law to economic
the degree to which its edicts took the form of general rules development (Dam, 2006). To the extent that the rule of law
that conformed to specific formal criteria and were supposed, can help deliver such reductions, this is reason to value it.
in particular, to guarantee certainty and predictability. In this This is not, of course, merely a negative matter of removing
understanding, “[t]he Rechtsstaat means that the law is the evils, but can be expressed positively. A society in which law
structure of the State, not an external limitation to it. . contributes to securing freedom, confidence, coordination
Liberty is a consequence not truly a premise of the law. The and dignity, is some great and positive distance from many
authority vested in this conservative aristocratic state protected available alternatives. There are other things we want from
civil liberties as a service offered through the State” law, and many more things we might want in a good
(Palombella, 2010: pp. 11–12). society, but ways of serving these values are goods
The notion that state agencies must comply with a law immeasurably harder to attain without institutionalizing
above the State, only came with the development of written constraints on arbitrariness, in both these senses, in the
and legally binding constitutions, particularly in reaction to the exercise of power.
Nazi calamity in the middle of the last century. Until then, For some thinkers, speculating in these ways about what
although “it was in the state’s interest to promote its self- good might flow from reducing arbitrariness in the exercise of
limitation through self-binding to legal norms” (Loughlin, power, what it might be for, takes us beyond the analytical task
2010: p. 320), and the people’s interest too, it was up to the of understanding what the rule of law is; for others it does not
state to bind itself (Selbstbeschränkung). The common law get us close to what matters. The former favor ‘thin’ accounts;

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Rule of Law (and Rechtsstaat) 783

the latter lard their accounts of the rule of law with more Many, however, find thin conceptions quite inadequate.
ingredients and of different kinds. These are often known in the Ronald Dworkin, for example, was skeptical of conventional
literature as ‘thick’ accounts of the rule of law. ‘rule book’ conceptions of the rule of law, which insist that “so
far as is possible, the power of the state should never be
exercised against individual citizens except in accordance with
Thin or Thick rules explicitly set out in a public rule book available to all. ...
Those who have this conception of the rule of law do care
Apart from questions of control versus character of law, writers about the content of the rules in the rule book, but they say
on the rule of law often distinguish between ‘thin’ or ‘formal,’ that this is a matter of substantive justice, and that substantive
on the one hand, and ‘thick,’ ‘substantive,’ or ‘material’ justice is an independent ideal, in no sense part of the ideal of
conceptions of it, on the other. The former limit themselves to the rule of law” (Dworkin, 1985: p. 11). He, by contrast,
formal properties of laws and legal institutions, which are regarded the rule of law as incorporating an ideal and an
purported to constitute the rule of law. The latter require eminently positive and substantive one, “the ideal of the
substantive elements from a larger vision of a good society and rule by an accurate public conception of individual rights”
polity – democratic, free-market, human rights respecting, or (Dworkin, 1985: pp. 11–12).
some such – to be present. The sociologist Philip Selznick had a more complex
The first track is favored by modern analytical jurists. They combination of thin and thick. He agreed with those political
have often adopted (Hart, 1967: pp. 273–274) or extended realists who stressed the importance of strict legality as
(Raz, 1979; Walker, 1988) Lon Fuller’s eight principles of what a restraint on, and saw the rule of law as a precious protection
he called ‘the morality of law’ as defining characteristics of the against abuse of, power (Selznick, 1992: p. 174). On the other
rule of law, even when they disagreed with him over whether hand, he insisted that there was a ‘larger promise of the rule of
they deserved to be called moral principles. According to law,’ and this “thicker, more positive vision speaks to more
Fuller (1969), these characteristics were that there must be than abuse of power. It responds to values that can be
rules, these rules must be publicly available, prospective, realized, not merely protected, within a legal process. These
understandable, consistent, possible to perform, sufficiently include respect for the dignity, integrity, and moral equality
stable for citizens to orient their actions by them, and of persons and groups. Thus understood, the rule of law
administered in ways congruent with their terms. There is enlarges horizons even as it conveys a message of restraint”
controversy over whether there is any reliable connection (Selznick, 1999: p. 26).
between such thin principles and substantive values beyond In Germany, the circumstances that moved prevailing
them (see Krygier, 2010: pp. 114–120) but whatever the view conceptions of the Rechtsstaat from thin to thick were more
on that, on a thin conception those further values are some- dramatic than those that preoccupied Dworkin and Selznick.
thing other than the rule of law. Indeed they were tragic. Already in the Weimar Republic,
Again, the Rechtsstaat has oscillated between thick and thin Hermann Heller rejected the legal positivist, formalistic,
through its 200 years of evolution. It was first theorized by conception of the Rechtsstaat as crystallized by his contempo-
German liberal constitutional and administrative theorists, rary, Hans Kelsen, which could accommodate any state. He
prominent among them Karl Rotteck, Karl Theodor Welcker argued for one that insisted that only a democratic state that
and Robert von Mohl, seeking to characterize a legal order in depended upon and then institutionalized fundamental ethical
terms of values it served (those values in their turn to be real- principles was a Rechtsstaat (for the debates between Carl
ized in and not against the state). The post-Nazi Rechtsstaat Schmitt, Hans Kelsen and Hermann Heller, which centered on
returned to, and richly amplified, a normative characterization the nature of the Rechtsstaat, see Dyzenhaus, 1997). Although
based on the fundamental value, inscribed in the first article of Heller died in 1933, he already saw fascism as the great
the German Basic Law of 1949, of human dignity. However, in threat to such a state. His nightmare became real in the
between times, after the failure of the 1848 revolutions and ensuing years.
particularly under and after Bismarck, its late nineteenth- In the perspective of German post-Nazi retrospection and
century and early twentieth-century versions were pared of introspection, thin conceptions came to seem not merely
normative adhesions, and strictly devoted to elaborating the inadequate, but on their own positively dangerous. The
formal components of a legal order that might properly be Rechtsstaat embodied in post-war German jurisprudence thus
called a Rechtsstaat. embodies a strong commitment to fundamental rights and to
Not only legal philosophers, but also legal comparativists the dignitarian premise of its 1949 Grundgesetz or Basic Law
(see Peerenboom, 2004) tend to favor ‘thin’ versions of the (see Grote, 1999), grounded in its unamendable Article I. This
concept, what might be called rule-of-law-lite: easier to proclaims that “Human dignity shall be inviolable. To respect
identify and able to travel further, because it carries less and protect it shall be the duty of all state authority.”
baggage. Many governments, too, particularly authoritarian Particularly through the interpretations of the Federal
ones, prefer to be assessed against thin formal criteria, easier Constitutional Court, this has spawned a rich jurisprudence
to satisfy than thick morally demanding ones. Today inter- of fundamental rights that characterizes the modern German
national businessmen, unwilling to buy into controversial understanding of the Rechtsstaat, or as it is frequently
questions about democracy, human rights and other large expanded (and at times complicated) to join the social
values in, say, Singapore and China (with both of which they welfare state (Sozialstaat), the sozialer Rechtsstaat.
might want to do business), often prefer a formal, thin, There are problems at the extremes. What is gained by
conception too. defining down a concept that bears so much normative

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784 Rule of Law (and Rechtsstaat)

resonance, in terms that ignore any interrogation of what its observation, experience, and reflection upon the pathologies
point might be, and simply focus on the characteristics of of unconstrained and/or capricious exercise of power and on
institutions and practices? Particularly when it is not clear what might be done to avoid or moderate such pathologies.
whether the characteristics chosen by ‘thin’ theorists relate as Legal orders typically embody and generate values related to
much to what law does and should do in the world, as they do what they do, both in their animating principles and ideals,
to lawyers’ unevenly informed intuitions and guesses about and in the complaints they provoke when their practices
these matters. Again, what of the exercise of power by extralegal flout the sources of their legitimacy (see Selznick, 1999;
forces, social networks? If they are free to act arbitrarily, capri- Waldron, 2011a). These have included such values as due
ciously, whatever the law says, does it make sense to insist that process or natural justice, ideals of fair treatment and
nevertheless the rule of law exists because certain formal notice, and in particular legal traditions much more. They
elements of a legal order are present? Excessively thin concep- have to do with treating a subject of power with the
tions often seem urgently in need of a feed. respect due to a person, rather than a ‘rabid animal or
Yet, conversely, accounts that purport to be thin as a rake a dilapidated house’ (Waldron, 2011a: p. 16). The rule of
are often rather plumper than intended, particularly where – as law might well be argued to be incomplete to the extent
is frequently the case in well-intentioned first world inter- that some such power-related values, that have to do with
ventions in benighted countries – they embody parochial how to arrange and transact potentially harmful interactions
suggestions as to what features of familiar legal orders generate between it and its subjects (too often treated as objects), are
rule-of-law friendly results. When packages of legal bric-à-brac dishonored. Attempts to vindicate such values, often implicit
are asked to travel, it often turns out that they work very in many legal principles and traditions if not all legal rules,
differently or not at all where they land (see Krygier, 2011). It might be considered a service to the rule of law, even if they go
might also turn out that institutions and practices of sorts not beyond purely formal aspects of laws and notwithstanding that
known in the homes of confident rule of law exporters they might fall short of justice more holistically conceived. On
perform adequately in their own homes, even if they one view, the special disease, to which the rule of law is part of
look quite strange to visitors. Whether they do or not should a remedy, is the propensity of power unconstrained to be
be a matter of investigation, not overbearing legalistic exercised in arbitrary ways. It is a widespread disease.
assumption. Too often, however, imported assumptions
about the working of legal institutions, based on distant
histories, traditions, institutions, and practices, have been Anatomy or Teleology
smuggled in and then re-sold as though of universal
applicability. When they fail to ‘take’ is it because the rule of More fundamental than contests over the fleshiness of the
law is a false ideal, or because what has been exported is not rule of law is one over whether we should begin with focus
the rule of law itself but parochial institutions taken to be on its anatomy, the institutional features one should expect
necessary for values that might yet be reached, and need to to find in such a creature – or its point – the reasons one is
be reached, in other ways? concerned with this rather than something else. The long
Partisans of thin versions, on the other hand, often associate common law tradition was not fixated on specific institu-
the thickness insisted on by moralists with a combination of tions, even less the precise character of legal rules. As Reid
parochialism and imperialism about values and institutions. demonstrates, it was all too murky: “Ironically, the medieval
Why should we assume, either as a matter of fact or of value, constitutional law out of which today’s rule of law developed
that all cultures value the same things from law? Metaethical would not have met the requirements of clarity or precision.
disputes this raises are too large to be resolved here, but there is There was always an air of indefiniteness, a smoky vagueness
another worry about too thick an account of the rule of law. As surrounding this all-embracing restraining ‘law’ of English
Joseph Raz has argued, ‘thick’ conceptions have a tendency to constitutionalism. Even its authority as law was shrouded in
wash away all distinction between the rule of law and anything immeasurability” (Reid, 2004: p. 16). But the common law
else we might want. That lays them open to the criticism that tradition was clear on one thing: “It was, Viscount
“[i]f the rule of law is the rule of the good law then to explain its Bolinbroke said in the eighteenth century, a matter of
nature is to propound a complete social philosophy. But if so curbing power and not of the type and structure of
the term lacks any useful function. We have no need to be government. Whether power was vested in a single
converted to the rule of law just in order to discover that to monarch, in ‘the principle Persons of the Community, or in
believe in it is to believe that good should triumph” (Raz, 1979: the whole Body of the People’ was immaterial. What
p. 211). mattered was whether power was without control. ‘Such
Such criticism points up another inadequacy of the choice Governments are Governments of arbitrary Will,’ he
on offer: the dichotomy between a spare and formalistic contended” (Reid, 2004: p. 42). Bolinbroke would likely be
thinness, on the one hand, and a pudgy confection of puzzled by the rule of law toolkits carried by UN and
everything we would like to find in a good society, does not World Bank rule of law promoters throughout the world
exhaust the field. There is space for values particularly asso- today; uniform in character, diverse in application,
ciated with the exercise of power, what might be called apparently universal in application. Why are those particular
distinctively legal values were it not for the fact that the institutions sacrosanct? What is the point? How has the
differences between them and other values are unlikely to be point influenced the kit? Even for those of us who have left
categorical, but rather matters of focus, shades, and degree. the mythologies and hagiographies of common law theory
Many legal orders bear and transmit long histories of long behind, these are not bad questions.

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Similar choices are also found in the Rechtsstaat tradition. on its point rather than, as is more common, with an enumer-
The early propagators of the concept were not legal anatomists ation of purportedly defining legal-institutional features,
but proto-liberals in the main, many influenced by Kant, whether they be particular institutions such as common law
seeking to establish an order of citizens equal before the law, courts (Dicey, 1961), particular formal qualities of rules,
whose personal autonomy and property were protected by the such as prospectivity, clarity, etc., or even traditions and
law. A state was a Rechtsstaat to the extent that it achieved these procedures, such as defences, habeas corpus, and so on
tasks, not because it had this or that particular form. As von (Waldron, 2011a), though the last is getting closer to explicit
Mohl put it, “the objective of the Rechtsstaat is not logically concern with the specific point of the rule of law.
entwined with a particular form of government; on the At first blush, this looks like a repetition of the distinction
contrary, every arrangement of public power which guarantees between thin and thick, and it is true that anatomical accounts
the right and the development of all human activities, is of the rule of law are often ‘thin,’ since they focus on delin-
admissible” (quoted in Heuschling, 2002: p. 59; my translation eating the characters of legal institutions. But there are two
from Heuschling’s French). These writers were explicit that differences. First, particularly among rule of law promoters, it is
what mattered was achieving what they conceived to be the rare that anyone has thin ambitions, more commonly they just
point of the rule of law, not whether it exemplified have confused ideas of what the rule of law is about. Rule of
a particular form of institutional architecture. That law promotion, after all, is ostensibly an attempt to enlist the
understanding did not continue through the nineteenth rule of law to do good in the world, not just to build replicas of
century, but was supplanted by a formalistic, anatomizing institutions from home. However, rule of law promoters are
conception, stressing the positivistically characterized features often restricted by the conventional identification of the rule of
of a state, that qualified it to be declared a Rechtsstaat. law, or Rechtsstaat, with a particular box of tricks, and proceed
On the teleological account, however, the rule of law to try to vindicate some purpose with an a priori catalog of
cannot adequately be explicated by a list of features of legal what is needed to achieve it, rather than an openness to the
institutions, rules or practices. For the rule of law occurs when possibility that they might need to learn some new tricks.
and to the extent that there is a social achievement to which law Awareness that one should start with the end, as it were, rather
contributes. If we say, for example, that there were lots of laws than purported means, might avoid a lot of grief over trans-
under Stalin and a lot of rule, but there was not much rule of plants that fail to do what is expected of them: promote the rule
law, we are not saying something controversial, and you of law.
would not have to know much about Dicey or Fuller to agree. Moreover, the distinctions between thin versus thick, on
So at least among the legally and philosophically unwashed, the one hand, and anatomical versus teleological, on the other,
the rule of law has something to do with what the law does, do not occupy the same plane. A teleological account is not
rather than simply with what it has been somewhere declared necessarily normatively thick; it might occupy itself with
to be. a small point, say predictability in the legal environment. How
Moreover, if the law is enlisted to do things we associate normatively enriched the point of the rule of law might be is
with the rule of law but the mission fails, we might say that a legitimate matter of debate, but it is a debate on the teleo-
there was an attempt to achieve the rule of law, but it was logical plane. On that plane, the question is not, first of all, how
unsuccessful: laws were of the sorts we associate with the rule of much normative weight the concept carries but where one
law, everyone was trying, but they were overborne, for whatever should start to think about the rule of law – by enumerating
reason. To say the rule of law exists in a society is to imply an a set of purported (and typically universal) features or by
accomplishment; among its partisans a valued accomplish- asking what it is might be good for. Since it is hard to know
ment: an ideal to which law is taken to contribute has been what features matter unless one has sorted out what they are
approached. for, the suggestion here is to start with the end.
On this view, the rule of law is not a natural entity like a tree,
simply awaiting scientific description, or even a man-made
contrivance like a rule of law in a statute book, which might Legal or Socio-legal
be identified by pointing to it. It exists to the extent that
a certain state of affairs, one in which power is exercised in If one is concerned with underlying values that inspire
relatively nonarbitrary ways, exists in the world. Law is commitment to the rule of law, this has significant and
supposed to contribute, though it will never do so on its own. somewhat paradoxical implications for where one should look
The aspiration or ideal is satisfied only insofar as some purpose to vindicate whatever one decides such values to be. For the
or goal for law is realized. While such an achievement could in search to redeem them is likely to decenter law itself. After all, it
principle be thought value neutral or even valueless, and has is in principle an open, and likely variable, matter what in the
been, the rule of law also has partisans – today perhaps, even world best minimizes arbitrariness in the exercise of power,
too many – who think it valuable, an ideal for law. If we value and the same might be said of any other values that we imagine
that ideal we should of course seek to identify what might be law helps vindicate. Yet if ends matter, then it is not clear that
necessary to generate it. But that is a second step. Without some one should assume that law is always key to achievement of the
principle of selection even if only tacit, we won’t find a bunch animating values of the rule of law, even less the state. This is
of legal bits and pieces waiting ‘out there’ and recognizable as so, whatever the values one has in mind, and it will be all the
the rule of law. more so as one ramps up the values one associates with the rule
The teleological contention is, then, that to understand of law. A good society is quite an achievement, and law only
what the rule of law requires we need to start by reflecting first a small, if precious, contributor.

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786 Rule of Law (and Rechtsstaat)

This applies at virtually every level. If arbitrary power is to be modish ubiquity threaten to obscure the valuable, indeed
feared, then wherever power is powerful enough to be fearful, precious purposes for which they were pushed into the fray,
rule of law concerns are relevant. Thus, preoccupation with the instead promiscuously to serve virtually any purpose you want
state is not always appropriate, in circumstances where many of to name.
the sources of restraint on arbitrary power, many dangers
flowing from it, and many of the goods accomplished by its See also: Constitutionalism, Comparative; Justice and Law; Law
curtailment, lie outside the state, and many of the means of and Democracy; Law and Development; Law: The Socio-Legal
achieving those goods lie outside the law as well (see Krygier, Perspective; Legal Positivism.
2011: pp. 85–91).
If that is the case, it is not obvious that the familiar
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