The “Rule of Law” is a term sometimes misused and abused.¹ It has been called “vague” and, among philosophers and scholars, “an especially contested concept.”²

Yet the idea has had an immense impact on world history and for the good. The rule embraces certain norms expected of an advanced, responsible and just society. Its meaning and scope have evolved through the ages, and different nations are at different levels of attainment. Access to justice, in the sense of skilled legal representation, is its newest element.

The most approved, precise and useful definition of the Rule of Law is “Political power must be exercised according to rules laid down.”³
Or “the principle that government can exercise authority only in accordance with written laws that have been adopted through a formal, established procedure.”⁴ The rule’s purpose “is to safeguard against arbitrary action by the government.”⁵

Plato and Aristotle

The Rule of Law of Greece and Rome

The premise of the Rule of Law is traceable to ancient Greece. Both Plato and Aristotle pondered it. However, in Greek thought, it was a limited idea synonymous with their form of government: direct democracy, where heads of households came face-to-face to make decisions for the community. Absent were our legal institutions: courts, lawyers, representative lawmaking and judicial decision-making.⁶

Moreover, an expansive view of equality before the law, as a fundamental ingredient of the present-day Rule of Law, was not in the ancient Greeks’ contemplation. Their notion of equality was uniform access to and application of justice to male heads of households of upper- and lower-class families alike. And to the ancients, both Greek and Roman, law was not necessarily codified. True law was intrinsic natural law discerned by reason leading to a happy, secure and just society. Sound statutory law simply reflected natural law: timeless and universal rights and wrongs. No wonder this theory appealed to the conquering Romans governing diverse peoples and cultures.⁷

Ancient Romans also accepted the Greeks’ narrow form of the Rule of Law, chiefly applicable to family heads. But they added their own positive and negative dimensions. As for the positive, during the nervous time of the late Roman Republic, Cicero declared that a ruler or judge who acts arbitrarily or outside the law “is the foulest and most repellent creature imaginable.” He reasoned, “it is the law that rules … not the individual who happens to be the magistrate.” Therefore, “a magistrate is a speaking law, and law a silent magistrate.”⁸

As for the negative, in the volume Lex Regia and others, Roman jurists proffered a fiction sanctioning dictatorship. It was asserted the people had expressly granted absolute power to the emperor to save Rome.⁹ With this circular analysis, the authoritarian regime, albeit acting arbitrarily, is within the Rule of Law: law authorized lawlessness. This is a thin, unpersuasive patina of legitimacy, but fascists, communists and other tyrants would offer their devotees and victims similar “reasoning.”     

With Rome’s fall, these ancient teachings were lost, not to be found by religious scholars until the late Middle Ages in university and monastery libraries of Italy and Germany. By then, belief in a practical version of the Rule of Law had already emerged independently in England, arising not in philosophers’ heads but from events. Hence, Greek and Roman contributions are not part of a continual tradition of the Rule of Law of Western civilization, let alone that of the common law family of nations sharing the English legal heritage. Still, some of these classical concepts serve as examples, justifications and inspiration.¹⁰
  

King John

The Rule of Law of England

At Runnymede in 1215, the enduring example and impetus of the Rule of Law we know was dramatically born. In a spring meadow near Windsor Castle, the duplicitous King John was compelled by his barons to agree to 63 sweeping and unprecedented articles restricting his power, clarifying feudal responsibilities and recognizing enumerated rights, including those of the church.¹¹

It guaranteed redress of grievances; fair, open and independent courts; trial by jury; checks on abusive taxation; merchants’ commercial rights; controls on royal officials; and female royal wards could wed or not as they wished. In sum, Magna Carta (the Great Charter) would henceforth limit government and sustain rights of all, not just those of the rebellious barons.¹²

Enforcement was entrusted to a council with the right to make war on the king, if necessary, and future English monarchs swore to Magna Carta’s terms.¹³ The law now had its own separate sovereignty, might and majesty, higher than even the king’s, to wit: the RULE of Law. The grand medieval document’s words and values echo to this day in the English Bill of Rights, the Declaration of Independence, the U.S. Constitution, the Bill of Rights and state constitutions.¹⁴

Edward Coke

The Rule of Law of Courts

The Rule of Law was championed by opponents of the divine right assertions of England’s Stuart kings, early on by Sir Edward Coke, lord chief justice and greatest lawyer and legal mind of his time. During the reign of James I, with Magna Carta as his lodestar, Coke’s defense of common law rights and procedures, most eloquently freedom of speech (specifically the right to silence) and habeas corpus protections, placed his nation on the road to civil war and the triumph of law over arbitrary absolutism.¹⁵

Ever since Coke, lawyers have been the chief defenders of the Rule of Law, primarily in the courts. And the American founders would quote him, “calling England to bear witness against England.”¹⁶

In defending judicial independence, Coke contended judges’ written decisions embodying the common law deserve identical constitutional status as Magna Carta, more so than acts of Parliament.¹⁷ Constitutional ranking notwithstanding, judicial precedent or stare decisis serves the Rule of Law’s prevention of arbitrary judicial power.¹⁸

In Federalist 78, Alexander Hamilton said that “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedent.”¹⁹
Equity jurisprudence is no exception, for its creative and coercive remedies are guided by precedent and principles, first forged by Sir Thomas More, organized by Sir Francis Bacon and explained by Justice Joseph Story as the “science” of equity.²⁰ Consequently, equitable decrees are not arbitrary and are reversable for “abuse of discretion.”²¹

In addition to adherence to precedent as a guard against arbitrary judicial power, courts’ independency became even more essential to the Rule of Law over time, fortified by the rise in the education and professionalism of the bench and bar and the advent of the Enlightenment doctrine of separation of powers expounded by Montesquieu.²²

Alexander Hamilton

 

The Rule of Law’s Scope

The Rule of Law became quite compatible with constitutional democracy, for both strive to constrain arbitrary power through written law. However, the Rule of Law is not always in agreement with majoritarianism, for the will of the people can be arbitrary. Like the Bill of Rights, the Rule of Law takes certain issues or means of governance off the table for majority meddling or experimentation, such as abandonment of due process and equal protection. Accordingly, the Rule of Law can shield a politically weak minority from abuse by the masses or what James Madison called “an interested and over-bearing majority.”²³ And so the Rule of Law is not identical to pure participatory democracy.

Nonetheless, English philosopher John Locke would inject a new democratic element into the Rule of Law construct. He argued that it must embrace set procedures whereby those who make law and administer it are selected by the people: Government must be authorized by the governed not to be arbitrary.²⁴

Furthermore, Locke believed the people had a right and duty to remove a king or ruler who breached the societal contract through arbitrary rule, and a constitutional order should be fashioned to inhibit misrule.²⁵ Locke’s writings were attractive to the American revolutionaries and the Framers of the Constitution and why they equated the Rule of Law with constitutionalism.

Besides written procedures and constraints, legal equality, stare decisis, judicial independence and constitutional democracy, the modern Rule of Law has come to include other values like transparency: an “open and visible” law-making process, and that process must be free of corruption, even if the law produced is wholesome and beneficial in effect.²⁶

Although ignored or outright rejected by the earth’s rogue regimes, the Rule of Law has also been introduced into international law. The same is true of commercial and regulatory law. Under contemporary application, it is understood government shall have no favorites among participants in the economy, and commercial activity must be regulated in a predictable, consistent and fair way.²⁷

John Locke

The Rule of Law and Access to Justice

No matter how imperfectly fulfilled, access to justice by all, in terms of access to a lawyer, has become a contemporary component of the Rule of Law and is so recognized by the United Nations.²⁸ Aside from fairness, self-interest alone requires this advance. What could be more arbitrary and thereby dangerous to a modern democracy than a court system accessible only to those fortunate enough to afford it?

Inclusion of the access to justice value and mission was greatly achieved by the early efforts and arguments of Charles Evans Hughes, America’s preeminent lawyer of the first half of the 20th century, governor of New York (1907-1910), 1916 Republican presidential nominee and secretary of state (1921-1925).

Justice Robert Jackson said, “He looks like God and talks like God.”²⁹ An American paragon of justice and rightly proclaimed “the leader of the legal aid movement” by Justice Felix Frankfurter,³⁰ Hughes was devoted to expanding the meaning of the Rule of Law to encompass skilled counsel for those unable to afford it in both criminal and civil matters.³¹

As an aim of his unsurpassed legal career, Hughes gave the cause instant credibility as a high-profile pro bono lawyer helping the poor, Cornell law professor, associate justice of the U.S. Supreme Court (1910-1916), president of the Legal Aid Society of New York (1916-1921)³², founder and first chair of the ABA Standing Committee on Legal Aid and Indigent Defendants (1920),³³ ABA president (1925-1926), judge of the Permanent Court of International Justice (1928-1930), and chief justice of the United States (1930-1941).

Before Hughes, bar associations mostly opposed legal aid, misunderstanding it as giving away what their members sold.³⁴ Due to his leadership, the bar became legal aid’s primary supporter. He made legal aid and organized pro bono mainstream and the objective of access to justice by the poor viewed as not of the left or right but furthering the nation’s promise of “justice for all.” Hughes warned:

There is no more serious menace than the discontent which is fostered by a belief that one cannot enforce his legal rights because of poverty. … Without opportunity on the part of the poor to obtain expert legal advice, it is idle to talk of equality before the law.³⁵

Charles Evans Hughes

The Rule of Law Threatened

In 2011, Tom Bingham, former lord chief justice of England and Wales, observed of the Rule of Law: “It remains an ideal, but an ideal worth striving for, in the interest of good government and peace, at home and in the world at large.”³⁶

However, the ideal has detractors. Some say it focuses on procedure (how law is made and enforced) to the exclusion of substance or whether the law is moral and just. Defenders counter that substance is addressed by other revered principles and institutions and the wisdom of lawmakers and their electorate. Like the Constitution, the Rule of Law cannot answer all questions and such inability does not lessen its merit.³⁷ It is not a talisman, but a check on arbitrary power only as strong as the fidelity of its adherents.

Likewise, some, seeking substance over procedure, bemoan the effort and delay caused by the Rule of Law.³⁸ They believe ends justify means, the old enticement of fanatics and dictators. And there are those who excuse so-called “process crimes” (an empty yet trendy term implying insignificance of criminality) and, on the left and right, even violence is tolerated. History teaches the next temptation is the antithesis of the Rule of Law: the arbitrariness of “might makes right” for the promise of order. Opinion polls, meanwhile, frighteningly show many young Americans have lost faith in constitutional democracy and thus ultimately the Rule of Law.³⁹

This threat is motivated by: 1) Ignorance (including a dangerous unawareness of history, civics and shared values, aggravated by the politicization of the sources of knowledge); 2) Youthful impatience (heightened by ceaseless social media and a 24-hour news cycle); 3) Living in media bubbles that only echo and reinforce and rarely challenge or broaden one’s perspective; 4) Demonization of moderation and compromise (the former once a virtue, the latter the hallmark of our system); 5) Government gridlock caused by hyper partisanship; 6) Disrespect for the opinion of others; 7) Extremist rhetoric by politicians and commentators, including attacks from the left and right on the legitimacy of institutions of governance when unhappy with outcomes; 8) Emphasis on rights and not responsibilities; 9) Experiencing their first economic downturn; and 10) An inexplicable sense of self entitlement.

Former ABA president William Gossett cautioned that the Rule of Law “can be wiped out in one misguided, however well-intentioned generation.”⁴⁰  |||

---

RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET), and since 1999 he has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has written for many publications on law and legal history.

---

NOTES

1. Like Justice Sandra Day O’Connor, I believe the term “Rule of Law” should be capitalized. See Sandra Day O’Connor, The Majesty of the Law 33, 238, 276 (2003).
2. The Cambridge Companion to the Rule of Law 7 (Jems Meierhenrich and Martin Loughlin eds., (2021).
3. Gary L. McDowell, The Language of Law and the Foundations of American Constitutionalism 160 (2010).
4. Joseph Adamczka, “Rule of Law” in 2 Encyclopedia of the Age of Political Revolutions and New Ideologies, 1760-1815 645 (Gregory Freemont-Barnes ed., 2007).   
5. Id. at 645.
6. Ben Z. Tamanaha, On the Rule of Law: History, Politics, Theory 7 (2004).
7. See id.
8. Id at 11.
9. Id.
10. Id.
11. Russell Fowler, “Magna Carta” in Encyclopedia of World History, The Expanding World 600 e.c. to 1449 259, 259-60 (2008).
12. Id.
13. Id. at 260.
14. See Sandra Day O’Connor, The Majesty of the Law 33-35 (2003).
15. See Sir John Baker, The Reinvention of Magna Carta 1216-1616 (2917); Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (2011); David Chan Smith, Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence (2014); Sir Edward Coke, Coke on Magna Carta: The Second Part of the Institutes of the Laws of England (1974).
16. Catherine Drinker Bowen, The Lion and the Throne ix (1956).
17. Charles Rembar, Law of the Land: Evolution of Our Legal System 286 (1980).
18. See Garner, et al., The Law of Precedent 7-8 (2016).   
19. The Federalist No. 78 (Alexander Hamilton), at 471 (Clinton Rossiter ed., 1961).
20. Gary L. McDowell, Equity and the Constitution 70, 76 (1982).
21. Rembar at 293.
22. See O’Connor at 238. For further reading, see David W. Carrithers and Philip Stewart, Montesquieu: Discourses, Dissertations and Dialogues on Politics, Science and Religion (2020).
23. The Federalist No. 10 (James Madison), at 77 (Clinton Rossiter ed., 1961).
24. Gary L. McDowell, The Language of Law at 161 (2010).
25. Id. at 397.
26. Adamczka at 646.
27. Id.
28. See United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (United Nations, 2013); Access to Justice and the Rule of Law (British Council, 2015).
29. Michael E. Parrish, The Hughes Court: Justices, Rulings and Legacy 9 (2002).
30. David M. O’Brien, Storm Center: The Supreme Court in American Politics 193 (2017).
31. See “Chief Justice Hughes and Legal Aid” in American Bar Association Journal 553 (Sept. 1941).
32. William G. Ross, The Chief Justice of Charles Evans Hughes 241 (2007).
33. Victor Geminiani, “Whence We Come–Reflections on Earl Johnson Jr.’s “To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States,” Mgmt. Info. Exchange J. 30, 32 (Fall 2015).
34. See Robert W. Gordon, “Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History,” 177, 180, 187 Daedalus: A Journal of the American Academy of Arts and Sciences (Winner 2019).
35. Merlo J. Pusey, Charles Evans Hughes 383 (1951).
36. Tom Bingham, The Rule of Law 174 (2011).
37. See Adamczka at 646.
38. See id.
39. CivXNow. “What is at Stake?” https://civxnow.org/our-vision/what-is-at-stake/ (last visited April 7, 2023).
40. William T. Gossett, Speech to the American Bar Association (Aug. 11, 1969).