Thursday, August 25, 2005

Rule of Law vs. Rule by Law

An important distinction needs to be made between rule of law and rule by law.

(1) Rule of law is an intrinsically moral notion. Indeed, I don't see how one can have a consistent theory of rule of law without appealing either to natural law theory or to some higher rule by law (e.g., divine command theory).

(2) Rule by law is very different, despite some superficial similarities. Rule by law is prudential: one rules by law (properly speaking) not because the law is higher than oneself but because it is convenient to do so and inconvenient not to do so. In rule of law, the law is something the government serves; in rule by law, the government uses law as the most convenient way to govern.

(3) The two chief arguments for rule by law rather than rule of law are exactly the same ones that are always used against natural law theory:

(a) disagreement and uncertainty in moral judgments;
(b) the claim that rule of law is seminal anarchy.

(4) The chief arguments against rule by law and for rule of law are exactly the same ones that are always used against the opponents of natural law theory:

(a) the question of how one can have authority without any moral basis;
(b) the claim that rule by law is seminal despotism.

(5) Rule by law can be either ad hoc (which is genuine despotism) or principled. Principled rule by law theory shares with rule of law theory the arguments that a stable, generally recognized law is needed in order to maintain generality, impersonality, and effectiveness of government. Thus principled rule by law theory allows for what Fuller has called "the internal morality of law" to the extent that this is prudentially justifiable as conducive to the ends of government. (There is an interesting paper by Kenneth Winston on this subject in the context of Chinese Legalism at SSRN; much of what I say in this post is influenced by Winston.)

(6) Much of what we call rule of law today is really rule by law; a very serious equivocation given that they tend in entirely different directions.

UPDATE: corrected some rather significant typographical errors.


  1. J Bowman11:35 AM

    Please read ... This is what is now happening here in Canada.  Harper rules by law ... Just as it is in China: 

    University of Ottawa constitutional law expert Errol Mendes warns that when a government does something in violation of existing laws regardless of justice or what rights are at stake, "that moves us towards an authoritarian state. What the government is doing is saying basically let's forget about the rule of law in this country and let's introduce the concept of rule by law."
    China has "rule by law," he adds.


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  3. Professional Legal Network4:30 AM

    Greatly define the rule of law and rule by law. I really like this summary of article. Great to know abut this information. Thanks for sharing.


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