THE RULE OF LAW: “I KNOW IT WHEN I SEE IT”?

The late Potter Stewart, a justice on the U.S. Supreme Court, once famously remarked that there was no need for the court to define the term obscenity: when it came to obscenity, Stewart said, “I know it when I see it.” For many people, the phrase the rule of law often seems to have a similar quality.

In its colloquial sense, the phrase the rule of law implies a rather vague cluster of concepts: fairness, justice, predictability, equality under law. When we think of the rule of law, we may think of the phrase first made famous by Aristotle and often cited by the founders of the American republic: the rule of law involves a “government of laws, not men.” More concretely, we may think of the rule of law as having something to do with certain kinds of institutions and structures: well-functioning, respected courts, judicial review, fair and adequate legal codes, well-trained lawyers, and so on. To some extent, we may also equate the rule of law with respect for basic civil and political rights.

For the most part, even those of us who work on rule of law issues would be hard pressed to go beyond these intuitions and offer a precise definition of the rule of law. Yet like Justice Stewart, we are nonetheless pretty sure that we know it when we see it.