What is the Rule of Law?

Legal Scholars have debated this question and no exact definition exists, especially when considered across cultures and history.  Western legal scholars have focused on the importance of generally applicable rules over ad hoc commands and supremacy of reason over arbitrariness.  See T.R.S. Allan, Rule of Law, in 3 The New Palgrave Dictionary of Economics and the Law 369 (Peter Newman ed., 1998).  Such definitions may, but do no necessarily, imply Western-style democratic institutions, capitalism, and human rights.

Regardless of the lack of precise definition, there are certain check lists and factors which are useful in recognizing the rule of law, based upon two levels of analysis (known as "thick" and "thin" theories, the latter of which is more rigorous).

"Thin Theory"--The law must be:
  • based on procedural rules for enactment and made by an institution with authority;
  • transparent, public & accessible;
  • general—not targeted; similarly situated people;
  • clear enough to be followed;
  • prospective in application;
  • consistent—laws must be consistent other law;
  • stable (and flexible)—"law must be stable and yet it cannot stand still" (Roscoe Pound);
  • fairly applied—it's not whether the rules themselves are fair, but whether the rules are applied;
  • enforced—gap between law on books and practice is narrow;
  • acceptable to a majority of those affected—it is not necessary that a particular law is accepted but whether, in general, the rule of law is acceptable.
 "Thick Theories" address the following additional elements:
  • political morality (free market capitalism, central planning, etc.);
  • forms of government (democratic, single party socialism, etc.);
  • conceptions of human rights (liberal, communitarian, "Asian values," etc.).
Source:  Randall Peerenboom, China's Long March Toward the Rule of Law 3 (2002) (citing Lon Fuller, The Morality of Law (1976)).

Another approach is to consider the various alternative states by which a society is governed--rule of law, rule of individual will, rule of the mob.

All societies find themselves at some point within the plane of this triangle.

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