Kristen Rundle is one of the world’s leading theorists of the rule of law. Revisiting the Rule of Law , evidences her extraordinary command of the theoretical literature, her deep familiarity with public law developments around the world, and the characteristic clarity that she brings to complex debates. Revisiting the Rule of Law is a tour d’horizon that is accessible to newcomers to those debates and enlightening to those who are well-versed in them.
Part I surveys methods by which the rule of law is theorized. Rundle begins by describing a series of recurrent themes in the literature. The first is that the rule of law has legal and political dimensions. As a political idea, the rule of law requires that “the rulers and the ruled, the government and the governed—must each be subordinate to the demands of law” (P. 5). By contrast, the legal dimension of the rule of law focuses “on how the institutions and procedures of a legal system constitute, express and sustain” (P. 5) this relationship of mutual subordination to the law. Part I then moves onto other classic themes in the rule of law literature: the meaning and significance of arbitrary power; the contrast between the rule of law and rule by law; the rule of law’s status as an ideal; and the essentially contested nature of the concept of the rule of law.
With these essential themes in view, Rundle surveys scholarly accounts that emphasize formal, procedural, and substantive aspects of the rule; a teleological approach that aims to identify the purpose(s) of the rule of law; and theories of the rule of law that are situated in broader theoretical projects. These theories include Dicey’s conception of the rule of law, which is embedded in a particular theory of English constitutionalism and Hayek’s conception, which is inseparable from his theories about liberty, the market, “spontaneous order”, and the role of common law courts in overseeing this kind of order (Pp. 18-19). Rundle closes this Part by drawing links between conceptions of the rule of law and theories of the nature of law, and identifying devices (dichotomies and taxonomies) that commonly frame discussions about the rule of law.
Part II identifies a range of ways in which diverse ideas are “entangled with” the rule of law. According to some theories, the rule of law contributes to a society’s attainment of other goods (e.g., liberty or legitimacy). In other theories, the rule of law is closely associated with, or a “companion” (P. 29) to, other ideas (e.g., human rights; peace, security, and development; law, order, and security). Sometimes theories connect the rule of law with institutions (e.g., the courts); procedural protections (e.g., impartiality and the right to be heard); and concepts (e.g., dignity). At other times, theories conflate the rule of law with constitutionalism. These theories tie the rule of law closely with the separation of powers, with the legislature as a site of representative democracy and vehicle for pursuing political agendas, and with the executive as a branch whose power needs constraint. Emergencies receive special attention because they are situations when executive power is concentrated, unsupervised, and potentially abused. Part II closes by describing controversies about whether the rule of law is necessarily tied to a “particular vision of politics” (P. 44), and especially with visions that are either antithetical to or compatible with the welfare state.
Part III suggests that revisiting the rule of law requires asking “what remains under-examined or underdeveloped within theoretical treatment of the idea, and asking why” (P. 48). This Part begins by assessing implications that flow from theorists’ assuming that the rule of law requires general rules. Rundle assesses how a focus on general rules may draw theoretical attention away from the “core political demand of mutual subordination to law” (P. 50). This inattention may lead theorists to assume that discretion is necessarily arbitrary or to fail to theorize the modern administrative state’s “proliferation of legal forms and technologies” (P. 52). Rundle further argues that theorists’ focus on legal rules may lead them to overemphasize legal persons’ “capacity to follow rules and to be answerable for their breach” (P. 56).
This emphasis may further lead theorists to neglect the ways in which legal persons can make legal demands on officials. According to Rundle, legal persons can require officials to comport themselves consistently with demands of mutual subordination to law (P. 57). The rule of law resides, then, in the quality of the relationship between officials and legal persons (P. 61). In some cases (as with judges and legislators) it will be relatively easy to identify who a relevant official is, but in others, including situations of contracted-out governance or automated government decision-making, it will be less obvious (P. 58).
Rundle concludes Revisiting the Rule of Law by describing particularly clear departures from the demands of the rule of law and by issuing a “provocation” (P. 65). She notes that the relationship of mutual subordination to law is severely undermined when officials exercise “inflated” discretion that dramatically increases their power over those who are subject to their authority (P. 65). She cites the complex discretionary decision-making powers of immigration officials as an example of this kind of distorted relationship.
Rundle’s provocation bears on the relationship between indigenous and settler legal orders. She notes that law plays a central role in indigenous political orders, as well as in political orders that understand themselves to be governed by the rule of law. She asks “how and in what ways might they be able to come together, to find common ground? Which aspects of our thinking on the rule of law might need to shift to make space for that project?” (P. 66, internal citations omitted).
Revisiting the Rule of Law leaves the reader with these and other pointed questions. Comparative public law scholars will do well to keep Rundle’s questions in mind as we study contemporary rule of law challenges across the globe.
