Rule of Law Initiative

Abstract 
In The Rule of Law in the Real World, Paul Gowder defends a new conception of the rule of law as the coordinated control of power and demonstrates that the rule of law, thus understood, creates and preserves social equality in a state. In a highly engaging, interdisciplinary text that moves seamlessly from theory to reality, using examples ranging from Ancient Greece through the present, Gowder sheds light on how societies have achieved the rule of law, how they have sustained it in the face of political upheaval, and how it may be measured and developed in the future. The Rule of Law in the Real World is an essential work for scholars, students, policymakers, and anyone else who believes the rule of law is critical to the proper functioning of society.

• Identifier: ISBN: 9781316494554
• Publisher: Cambridge : Cambridge University Press
• Year of Publication: 2016
• # of pages in the book: 275

Abstract
Freedom and the Rule of Law takes a critical look at the historical beginnings of law in the United States, and how that history has influenced current trends regarding law and freedom. Anthony Peacock has compiled articles that examine the relationship between freedom and the rule of law in America. The rule of law is fundamental to all liberal constitutional regimes whose political orders recognize the equal natural rights of all.

• This is an anthology of articles on the rule of law in the United States
• Identifier: ISBN: 9786612494598
• Publisher: Lanham, MD : Lexington Books
• Year of Publication: 2010
• # of pages in the book: 303

Summary
Link to Book
This classic collection of essays, first published in 1979, has had an enduring influence on philosophical work on the nature of law and its relation to morality. Raz begins by presenting an analysis of the concept of authority and what is involved in law's claim to moral authority. He then develops a detailed explanation of the nature of law and legal systems, presenting a seminal argument for legal positivism. Within this framework Raz then examines the areas of legal thought that have been viewed as impregnated with moral values - namely the social functions of law, the ideal of the rule of law, and the adjudicative role of the courts. The final part of the book is given to understanding the proper moral attitude of a citizen towards the law. Raz examines whether the citizen is under a moral obligation to obey the law and whether there is a right to dissent. Two appendices, added for the revised edition, develop Raz's views on the nature of law, offering a further dialogue with the work of Hans Kelsen, and a reply to Robert Alexy's criticisms of legal positivism. This revised edition makes accessible one of the classic works of modern legal philosophy, and represents an ideal companion to Raz's new collection, Between Authority and Interpretation.

• Identifier: ISBN: 9780199573561
• Publisher: Oxford University Press
• Year of Publication: 2009, 2nd edition
• # of pages in the book: 360

Abstract:
Link to Book
The contemporary U.S. legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agendas. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law the idea that law is purely a means to an end -in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.

• Identifier: ISBN: 0521869528
• Publisher: Cambridge ; New York : Cambridge University Press
• Year of Publication: 2006
• # of pages in the book: 254

Abstract:
Link to Book
What is the rule of law? Why does it matter? How well does America conform to the rule of law? And why do Americans, who profess such respect for the law, complain so often about our legal system? Drawing upon extensive experience in law, government service, teaching, and research, Boston University law school dean Ronald Cass offers a welcome contribution to the ongoing public discussion on law and society. After opening his discussion with chapters on the rule of law in American society, Cass turns to the hard case of its application to the president of the United States. Through this prism Cass examines the behavior of judges who may not always act according to a "perfect model." They may not always be perfectly constrained by law or achieve perfect justice through law. That, however, is the wrong thing to ask. Instead, says Cass, "looking at the ordinary case―and asking not whether the decision advances particular aspirations for society, but whether it conforms to basic aspects of legal authority―produces a more law-governed view of America judging." In fact, this book provides a much-needed corrective to criticism of the American legal system raised all too frequently by members of the academy and by politicians. Rather than concentrating on relatively minor inconsistencies in the law and slight departures from the ideal of perfectly constrained decision making, Cass argues that the energies of his fellow scholars could be better spent on more serious defects in the legal system. With a special section on the 2000 presidential election, including the Florida recount and Supreme Court decision, The Rule of Law in America offers a timely look at a subject of interest to legal scholars and general readers alike.

• • Identifier: ISBN: 0801867282
  • Publisher: Baltimore : Johns Hopkins University Press
  • Year of Publication: 2001
  • # of pages in the book: 214

Abstract:
Link to PDF of Book
The book is considered Hayek's classic statement on the ideals of freedom and liberty, ideals that he believes have guided—and must continue to guide—the growth of Western civilization. Here Hayek defends the principles of a free society, casting a skeptical eye on the growth of the welfare state and examining the challenges to freedom posed by an ever expanding government—as well as its corrosive effect on the creation, preservation, and utilization of knowledge. In opposition to those who call for the state to play a greater role in society, Hayek puts forward a nuanced argument for prudence. Guided by this quality, he elegantly demonstrates that a free market system in a democratic polity—under the rule of law and with strong constitutional protections of individual rights—represents the best chance for the continuing existence of liberty.

• Identifier ISBN-13: 978-0-226-31537-9 (cloth)
• Publisher: The University of Chicago Press
• Year of Publication: 1960, 2011
• # of pages in the book: 596

Intro Paragraph: Over the past year, public discourse increasingly cited the value of the rule of law. In response to the January 6 insurrection, then-President Trump claimed that "Making America Great Again has always been about defending the rule of law." About a month later, President Biden remarked that one of "America's most cherished democratic values. . . [is] respecting the rule of law." What do public figures mean when they refer to the rule of law? Do they invoke the phrase in the same way they purport to know what "the American people" want, or does the idea connote much more than some amorphous optimism in our way of government. Modern legal philosophers such as Joseph Raz and F. A. Hayek have provided normative characterizations of what it means for the rule of law to govern a legal system. Raz, in particular, emphasizes that a society governed by the rule of law "must be capable of guiding the behavior of its subjects," and identifies certain principles that derive from the rule of law, such as an independent judiciary and accessibility of courts. However, the concept boasts a history stretching back to Greek philosophers, and the ways in which the rule of law has been discussed through history can supplement modern philosophical definitions by bringing to the fore two common themes: fairness and the supremacy of the law.

• Link to Article
• Citation: Blaine Fix, So, What is the Rule of Law? J.L. & Pub. Pol'y 1 (2021)

Abstract: In the words of Justice Anthony Kennedy, "the term rule of law is often invoked yet seldom defined." Since the time of Aristotle, scholars, judges and legal practitioners have struggled to clearly articulate the meaning of the phrase. This Article contributes to the ongoing discourse by setting forth eight principles that form the central tenets of the rule of law. This Article also identifies five additional principles that might be added to the list of principles defining the rule of law. This continued definitional quest is important, because to the extent we can more clearly identify the principles of the rule of law, we can more effectively support the legal and political reforms that will advance it.

• Link to Article 
• Citation: Robert A. Stein, What Exactly Is the Rule of Law?, 57 Hou. L. Rev. 185, 201 (2019).

Summary from HeinOnline: The article explores the rule of law principles in administrative governance, focusing on five key principles: authorization, notice, justification, coherence, and procedural fairness. These principles form a framework for understanding how administrative law aligns with rule of law tenets, emphasizing that agencies must act within Congress-granted powers and ensure impartial adjudication. The analysis draws on Peter Strauss's scholarship, highlighting the need for judicial oversight of agency authority and the integration of administrative decisions into the broader legal system.

• Link to Article
• Citation: Kevin M. Stack, An Administrative Jurisprudence: The Rule of Law in the Administrative State, 115 Colum. L. Rev. 1985, 2018 (2015).

Abstract: Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, The Rule of Law as a Law of Rules. In this Article, we explore the extent to which that rule orientation in the context of constitutional interpretation is consistent with the Constitution's original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the necessary and proper power, and indeed the entire scheme of enumerated powers are all infused with standards, largely through the Constitution's implicit incorporation of fiduciary norms as a background principle of interpretation. The Constitution often prescribes rules, but it often does not. The law is what it is, whether or not it conforms to some abstract jurisprudential norm. The rule of law is not a law of rules. It is a law of law.

• • Link to Article
  • Citation: Steven G. Calabresi & Gary Lawson, The Rule of Law as a Law of Law, 90 Notre Dame L. Rev. 483, 504 (2014).

Abstract: Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law.

• Link to Article
• Citation: Jeremy Waldron, The Rule of Law and the Importance of Procedure, Getting to the Rule of Law 3 (2011).

Summary: Robert Stein discusses the University of Minnesota Law School symposium about the rule of law. He goes through the history of rule of law programs from a number of organizations throughout the world. He asks the question "what does the rule of law mean?" and goes through the philosophical writings on the topic throughout history.

• • Link to Article
  • Citation: Robert Stein, Rule of Law: What Does It Mean, 18 Minn. J. Int'l L. 293, 303 (2009).

Summary from HeinOnline: The article argues that the Rule of Law and the concept of law are deeply interconnected and should be understood as a unified framework rather than separate ideas. It critiques positivist views that reduce law to mere command-and-control systems, emphasizing instead the importance of procedural fairness, judicial institutions, and the argumentative nature of legal practice. The analysis posits that the Rule of Law enriches our understanding of law by highlighting its procedural and normative dimensions, while law provides the foundational structure that the Rule of Law seeks to uphold. This integration is essential for ensuring that legal systems remain fair, predictable, and respectful of human agency and dignity.

• Link to Article
• Citation: Jeremy Waldron, The Concept and the Rule of Law, 43 Georgia L. Rev. 1, 61 (2008).

Abstract: "This paper provides a brief overview of core aspects of the rule of law. It is by no means exhaustive on the subject and does not resolve any of the hard questions. Rather, it is a pragmatic guide to the basic issues, oriented to the circumstances and concerns of societies that are working to develop the rule of law (although the discussion applies broadly to all societies and legal systems). The topics covered are: Definition, Functions, Benefits, Elements. Several key points are made about each subject, followed by comments on limitations or concerns. The overview closes with a few reasons to be wary of the rule of law. This paper should be useful for non-theorists interested in learning about the rule of law, and may serve as supplemental reading material for classes on government or on law and development.

• Link to Article 
• Citation: Tamanaha, Brian Z., A Concise Guide to the Rule of Law. FLORENCE WORKSHOP ON THE RULE OF LAW, Neil Walker, Gianluigi Palombella, eds., Hart Publishing Company, 2007, St. John's Legal Studies Research Paper No. 07-0082, Available at SSRN: https://ssrn.com/abstract=1012051
• Published as part of St. John's University School of Law legal studies research paper series in 2007

Abstract: Legal authorities gain when they receive deference and cooperation from the public. Considerable evidence that the key factor shaping public behavior is the fairness of the processes legal authorities use when dealing with members of the public. This reaction occurs both during personal experiences with legal authorities and when community residents are making general evaluations of the law and of legal authorities. The strength and breadth of this influence suggests the value of an approach to regulation based upon sensitivity to public concerns about fairness in the exercise of legal authority. Such an approach leads to a number of suggestions about valuable police practices, as well as helping explain why improvements in the objective performance of the police and courts have not led to higher levels of public trust and confidence in those institutions.

• • Link to Article 
  • Citation: Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just. 283-358 (2003).

Summary from HeinOnline: The article presents a comprehensive analysis of the Rule of Law, arguing that it is a multifaceted concept encompassing four distinct yet interconnected ideal types: historicist, formalist, Legal Process, and substantive. Each type offers a unique perspective on how the law should be understood and applied, reflecting different values and assumptions. By examining these ideal types through various court cases, the article advocates for a dynamic and evolving understanding of the Rule of Law, emphasizing its adaptability to contemporary legal challenges. This nuanced approach provides a valuable framework for legal education and practice, enabling future practitioners to navigate the complexities of the legal system effectively.

• • Link to Article
  • Citation: Richard H. Fallon Jr., The Rule of Law as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 56 (1997).

Summary from HeinOnline: The article presents a formal theory of the rule of law, emphasizing its conceptual, institutional, and axiological components. It argues that a formal approach, focusing on structure and process, is preferable as it provides a politically neutral framework that ensures predictability, fairness, and consistency, even if the legal content is flawed.

• Link to Article
• Citation: Robert S. Summers, A Formal Theory of the Rule of Law, 6 Ratio Juris 127, 142 (1993).

Summary from HeinOnline: The article argues that the traditional formalist conception of the Rule of Law, which posits that rules are logically prior to particular cases, is challenged by Wittgenstein's view of rules as social and practice-based. The author suggests that the Rule of Law can remain a coherent ideal if reinterpreted to align with a more pragmatic, socially constructed understanding of legal rules. This reinterpretation emphasizes the contingency of

• Link to Article
• Citation: Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 819 (1989).

Summary from HeinOnline: The article explores the tension between the rule of law, characterized by general rules, and personal discretion in judicial decision-making. Scalia argues that while case-by-case discretion may seem more flexible, it often leads to inconsistency, undermining the rule of law's principles of predictability and equality. He advocates for the establishment of clear, general rules to guide judicial decisions, even if they introduce some imprecision, as they promote judicial restraint and respect for the law.

• Link to Article 
• Citation: Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1188 (1989)

Summary from HeinOnline: The article reimagines the separation of powers doctrine through the lens of conflict of interest, arguing that this approach aligns with the rule of law and due process principles. It contends that while the Constitution does not explicitly mention separation of powers, the concept is implicit in its structure and The Federalist. The analysis emphasizes the judiciary's role in balancing branch autonomy with fairness, particularly in cases involving independent agencies and counsel. The conflict of interest rationale is proposed as a viable framework for resolving modern separation of powers disputes, ensuring judicial independence and preventing bias in governmental administration.

• • Link to Article
  • Citation: Paul R. Verkuil, Separation of Powers, The Rule of Law and the Idea of Independence, 30 Wm. & Mary L. Rev. 301-341 (1989).