Document Type

Article

Publication Date

8-2025

Abstract

The rule of law is a political idea that counts only allies and no enemies. As a popular concept, the rule of law inspires broad rhetorical support. In the United States, for instance, liberals and conservatives alike invoke the “rule of law” as a normative lodestar in political conflicts. Liberals targeting the Trump administration cast their lawsuits as a defense of the rule of law. In parallel fashion, conservatives often charge creative readings of old statutes and ambitious administrative action as departures from the rule of law. It seems that any viable political venture must defend, advance, or at least not disturb the rule of law.

Academic debate, however, begins where political discourse ends. While few scholars dispute whether the rule of law is valuable, there is far less agreement about what the rule of law actually is. As George Fletcher once memorably put it, “[W]e are never quite sure what we mean by the ‘rule of law.’” Among theorists, there are at least two forms of disagreement: substantive and methodological. Consider the first level: substance. Here the traditional division is between “thick” and “thin” notions of the rule of law. Proponents of the thin picture — minimalists — cabin the rule of law to a set of formal characteristics. Maximalists, by contrast, see the rule of law as infused with substantive normative commitments. For them, the rule of law cannot be disentangled from broader values such as democracy, equality, human rights, or constitutionalism. The first and major dividing line in rule of law thinking, then, is between form and substance, thick and thin views of what the rule of law means.

Disciplines

Law | Law and Philosophy | Rule of Law

Download

Share

COinS