January 01, 2015

Contemporary Legal System Challenges to the Rule of Law

By Keith Roberts

Lawyers, judges, politicians, and economists almost universally praise the rule of law and consider it a foundation of liberty and prosperity. But what do we mean by “the rule of law”? This article began as an attempt to answer that question, and the first section offers an answer. As my research proceeded, however, I discovered that certain contemporary developments seriously challenge the rule of law’s primacy in the world, and in the U.S. legal system itself. The balance of this article discusses three of these developments: the effort to expand the rule of law’s definition to include respect for human rights; the effort to ease trial caseloads by favoring ADR methods like mediation and arbitration; and, finally, the effort to restrict political or legal access by various parties claiming injury.

The Rule of Law

What Is the Rule of Law?

The rule of law is a characteristic of political communities within which, in the words of Justice Sandra Day O’Connor, “all persons shall be secure from the arbitrary exercise of the powers of government.”1 The legal system and the judiciary are traditionally central to the concept’s implementation, which may be why it is beloved by judges, lawyers, and the American Bar Association. Indeed, one of six strategic goals for the ABA Judicial Division is to “[a]dvance the rule of law throughout the world.”

The rule of law in more expansive form has also become talismanic outside the legal world. As the Carnegie Endowment for Peace’s Rachel Kleinfeld Belton has noted,

Like a product sold on late-night television, the rule of law is touted as able to accomplish everything from improving human rights to enabling economic growth to helping to win the war on terror. The rule of law is deemed an essential component of democracy and free markets. The North Atlantic Treaty Organization (NATO) demands that all new members demonstrate their commitment to it, and the European Union (EU) requires its existence before a country can even begin negotiating for accession. Building the rule of law is a strategic objective of the U.S. Agency for International Development (USAID), a growth field for the World Bank, and a rhetorical trope for politicians worldwide.2

The rule of law has thus gained worldwide acceptance as requisite for political legitimacy. But what is the rule of law? Two recent books tell us.3 For legal philosopher and Washington University law professor Brian Tamanaha, it means “the sovereign, and the state and its officials, are limited by the law.”4 For the late Lord Chief Justice of England and Wales Tom Bingham, more specifically, it means “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”5

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