Version: v1, Published online: 1998
Retrieved March 26, 2019, from https://www.rep.routledge.com/articles/thematic/rule-of-law-rechtsstaat/v-1
The ‘rule of law’ most simply expresses the idea that everyone is subject to the law, and should therefore obey it. Governments in particular are to obey law – to govern under, or in accordance with, law. The rule of law thus requires constitutional government, and constitutes a shield against tyranny or arbitrary rule: political rulers and their agents (police and so on) must exercise power under legal constraints, respecting accepted constitutional limits. The British and US conceptions of this ideal find a parallel in the Germanic concept of the Rechtsstaat, or ‘state-under-law’, where the state as an organized entity is conceived to be limited by laws and by fundamental principles of legality, rather than being a purely political organization that can dispense with law in the interests of policy. Such concepts play an essential part in the political philosophy of liberalism; yet, characteristically, their more detailed exposition and indeed their nature and meaning are contested and controversial.
In a wider sense, the rule of law articulates values of procedural fairness or due process which affect the form of legal rules and govern the manner of their application. Those values both enhance the utility of legal regulation and also acknowledge underlying ideas of human dignity and autonomy. In a further sense, the rule of law refers to the faithful application of those rules and principles which constitute the law of a particular legal system. It expresses the idea that legal obligation should always be determined in particular cases by analysis of existing law – as opposed to ad hoc legislation by judges – even where disagreement may exist about the true meaning or content of the law.
The connection between the rule of law and justice is complex. The rule of law cannot itself guarantee justice, but it forms an essential precondition. In so far as it imposes formal constraints on the laws enacted or enforced, which ensure that they are capable of being obeyed and that they are fairly administered, the rule of law assumes a conception of moral personality – of how individuals should be treated, as responsible human beings, capable of a sense of justice – which links the idea with the values of freedom and autonomy, and the ideal of equality.
Allan, T.R.S.. Rule of law (Rechtsstaat), 1998, doi:10.4324/9780415249126-T022-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/rule-of-law-rechtsstaat/v-1.
Copyright © 1998-2019 Routledge.