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Basic Concepts of Legal Thought
George P. Fletcher
Oxford University Press
New York

The Rule of Law

Of the all dreams that drive men and women into the streets, from Buenos Aires to Budapest, the “rule of law” is the most puzzling. We have a pretty good idea what we mean by “free markets” and “democratic elections”. But legality and the “rule of law” are ideals that present themselves as opaque even to legal philosophers. Many American jurists treat the rule of law as though it were no more than governance by rules. Thus we find Justice Scalia arguing explicitly that the rule of law is no more than the law of rules.1 And philosophers, such as Friedrich Hayek and Joseph Raz, make the same assumption that the rule of law means that the government is “bounded by rules fixed and announced beforehand.”2 Plying by the rules is, in some dubious contexts, a great achievement, but once societies have minimized graft and arbitrary rule, the “rule of law” seems to promise more than blindly playing the game. After all, the rules of the game might be horribly unjust.
There are in fact two versions of the rule of law, a modest version of adhering to the rules and a more lofty ideal that incorporates criteria of justice. We shuffle back and forth between them because we are unsure of the import of the term “law” in the expression “rule of law”. To explicate a rarely perceived ambiguity in English, we turn to a distinction between two concepts of law that is widely recognized in other languages but ignored in English.
Continental European languages, for example, use one term for law that express the idea of laws enacted-laid down, legislated-by an authoritative body. Thus Germans use the term Gesetz, French loi, Russian zakon, Spanish ley, and speakers of Hebrew hok. All these languages also contain a second word for law that expresses a higher notion of Law as binding because it is sound in principle.3 This alternative conception of law is expressed in the Continental European languages as Rech in German, droit in French, pravo in Russian, derecho in Spanish and mishpat in Hebrew.4 The closest translation of these terms in English would be “Right”, an arhaic expression for Law sometimes used in the translation of philosophical works.5 The connotation of Right (or Law with a capital L) is typically that of good or just law, which is binding on us because it is good or just . In many modern European languages (not Hebrew) the term for Law in this higher sense is used to refer to personal rights in the plural (Rechte, droits, prava, derechos). The appeal to human rights, therefore, is an indirect appeal to the same word “Right” that in European languages signifies law in a higher...