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18 - The Rule of Law

from Part II - Modalities

Published online by Cambridge University Press:  27 March 2025

By
Jeff King
Edited by
Richard Bellamy  and
Jeff King
Richard Bellamy
Affiliation:
University College London
Jeff King
Affiliation:
University College London
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Summary

The rule of law is a normative political ideal. This chapter 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 chapter 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 lawformal and substantive conceptionsarbitrary powerHayekrule of law and welfare stateprotective function of lawrule of law and concept of lawessence of legalityrule of law and human rightsrule of law and democracy
Type
Chapter
Information
The Cambridge Handbook of Constitutional Theory , pp. 297 - 315
Publisher: Cambridge University Press
Print publication year: 2025

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References

Recommended Reading

Anderson, E. (2017). Private Government: How Employers Rule Our Lives (and Why we Don’t Talk about It), Princeton: Princeton University Press.Google Scholar
Craig, P. (1997). Formal and Substantive Conceptions of the Rule of Law. Public Law, 467–487.Google Scholar
Fleming, J. ed. (2011). Getting to the Rule of Law: NOMOS L, New York: New York University Press, pp. 64–104.Google Scholar
Fuller, L. L. (1969). The Morality of Law, rev. edn, New Haven: Yale University Press.Google Scholar
Krygier, M. (2017). Tempering Power. In Adams, M. et al., eds, Constitutionalism and the Rule of Law: Bridging Ideas and Realism. Cambridge: Cambridge University Press, pp. 34–59.CrossRefGoogle Scholar
Lovett, F. (2016). A Republic of Law, Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Meierhenrich, J. & Loughlin, M. eds. (2021). The Cambridge Companion to the Rule of Law, Cambridge: Cambridge University Press, pp. 39–67.CrossRefGoogle Scholar
Postema, G. (2022). Law’s Rule: The Nature, Value, and Viability of the Rule of Law, Oxford: Oxford University Press.Google Scholar
Raz, J. (1979b). The Rule of Law and its Virtue. In Raz, J. (Ed), The Authority of Law: Essays in Legal Philosophy. Oxford: Clarendon Press, pp. 210–229.Google Scholar
Sempill, J. (2018a). Ruler’s Sword, Citizen’s Shield: The Rule of Law and the Constitution of Power. Journal of Law & Politics, 31 (3), 333–415.Google Scholar
Tamanaha, B. (2004). On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Waldron, J. (2008–2009). The Concept and the Rule of Law. Georgia Law Review, 43 (1), 1–61.Google Scholar

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  • The Rule of Law
  • Edited by Richard Bellamy, University College London, Jeff King, University College London
  • Book: The Cambridge Handbook of Constitutional Theory
  • Online publication: 27 March 2025
  • Chapter DOI: https://doi.org/10.1017/9781108868143.021
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  • The Rule of Law
  • Edited by Richard Bellamy, University College London, Jeff King, University College London
  • Book: The Cambridge Handbook of Constitutional Theory
  • Online publication: 27 March 2025
  • Chapter DOI: https://doi.org/10.1017/9781108868143.021
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • The Rule of Law
  • Edited by Richard Bellamy, University College London, Jeff King, University College London
  • Book: The Cambridge Handbook of Constitutional Theory
  • Online publication: 27 March 2025
  • Chapter DOI: https://doi.org/10.1017/9781108868143.021
Available formats
×