Why We Need to Abandon ‘The Rule of Law’

Paul Burgess

Monash University

The concept of the Rule of Law is seen around the world as a guiding principle that operates to limit the arbitrary exercise of power. Amongst other things, it deters governments from making laws that do not follow agreed legislative processes, that retrospectively criminalise acts, or that target individuals. For these reasons, the concept of the Rule of Law operates in a way that seeks to diminish the arbitrary exercise of power and, as a result, enhances societies around the world. 

However, ‘the Rule of Law’ is also used in many different ways and to support many disparate points that result in ‘the Rule of Law’ becoming both meaningless and confusing. In these circumstances, we need to abandon ‘the Rule of Law’, stop hiding behind the ‘good vibrations’ associated with the phrase, and be clear about what we mean. 

Confusion Around ‘the Rule of Law’

There are a number of different conceptions of the Rule of Law. Some prefer a view that is more procedural: law must have a number of characteristics. In one of the most famous ideas, allegorically stated by Lon Fuller in his book The Morality of Law, the hypothetical King Rex failed to make laws because they lacked generality, publicity, prospectivity, intelligibility, consistency, practicability, stability, and congruence. For something to be a law, according to Fuller, it must have these characteristics. 

Others prefer a conception that is more substantive: the outcome of a particular law must be desirable. For example, the influential British judge Tom Bingham – in his book The Rule of Law – thought the Rule of Law required laws to promote human rights. Thick conceptions have become increasingly popular and have expanded to include other ideas that include a compelling argument by Jeff King for a social dimension of the Rule of Law.

The concept of the Rule of Law has recently been stretched even further through suggestions that the protections afforded by the concept should extend beyond the interaction between governments and individuals to encompass interactions between individuals as well as to using the Rule of Law to scrutinise the activities of powerful private actors in transnational development projects.

Even if we were to see some uniformity within these categories, they hide the significant differences that exist between the Rule of Law ideas across these categories. 

This has the potential to generate substantial confusion. Yet, the confusion is not limited to individuals seeking to explain the nature of the concept or the interrelationship between the conceptions. Different nations also have different ideas of the concept. 

The United Nations (‘the UN’) seeks to promote its idea of the Rule of Law in countries around the world. The UN promotes the Rule of Law as a way to achieve other ideals it sees as important (for example, democracy). 

The UN largely adopts an Anglo-American conception of the Rule of Law – one that is derived from the ‘usual suspects’ of the Rule of Law; thinkers that include Aristotle, Locke, Dicey, Hayek, Fuller, and Raz. This can be seen as problematic because not all parts of the world need (or want) an Anglo-American conception of anti-arbitrariness thrust upon them. Putting aside rogue states or developing nations, many nations already have concepts that limit power – like the Rechtsstaat in Germany. 

What becomes clear from each of these examples is ‘the Rule of Law’ is used as an umbrella term. It is deployed in a variety of situations of global significance in consequence of the near universal appeal that the concept has enjoyed. There is, however, no way to settle on any singular ‘correct’ idea of the Rule of Law.

The sheer breadth of things included beneath this umbrella has an unfortunate consequence: it renders any use of ‘the Rule of Law’ confusing to all but those who spend their life researching it. 

This confusion means that use of ‘the Rule of Law’ as a rhetorical or persuasive weapon is increasingly rendered meaningless. 

The Meaninglessness of ‘the Rule of Law’

‘The Rule of Law’ is frequently deployed by politicians and world leaders in order to support a vast array of positions. 

Australia recently saw ‘the Rule of Law’ deployed by the Prime Minister and the then-Attorney General Christian Porter as a shield against a non-criminal investigation into allegations made against Porter. In the debate that followed, ‘the Rule of Law’ was also deployed to demonstrate the opposite: a non-criminal investigation would promote the Rule of Law. 

Using ‘the Rule of Law’ on both sides of an argument is, however, nothing new. Following the infamous 2000 US presidential election dispute in Florida, ‘the Rule of Law’ was invoked by opposing legal teams in the US Supreme Court. 

If ‘the Rule of Law’ is invoked – in necessarily vague and undefined terms that cannot be verified – on both sides of an argument, any relative benefit that ‘the Rule of Law’ brings is nullified; speaking of ‘the Rule of Law’ is of little argumentative benefit.

Where nobody knows what it really means, even if we all agree it is a good thing, it is difficult to use ‘the Rule of Law’ to win an argument. Accordingly, the relative benefits that come from using ‘the Rule of Law’ are minimal; ‘the Rule of Law’ becomes devoid of any real meaning.

Abandoning ‘the Rule of Law’

We need to abandon ‘the Rule of Law’ and start being clear about what we intended to convey by deploying that phrase. For example, if we think that a non-criminal inquiry shouldn’t take place because individuals should only be subject to sanctions through the court system, we should say that; if we think that laws must be general and prospective, then we should say that; if we think that democracy or human rights are a good thing, we should say that. 

Deploying ‘the Rule of Law’ in place of these arguments, where we could be clearer, is meaningless and confusing. We need to abandon ‘the Rule of Law’, and soon.

Paul Burgess is a Lecturer at the Faculty of Law at Monash University. 

Suggested Citation: Paul Burgess, ‘Why we need to abandon ‘The Rule of Law’’, IACL-IADC Blog (21 September 2021) https://blog-iacl-aidc.org/2021-posts/2021/9/21/why-we-need-to-abandon-the-rule-of-law.