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The rule of law and the role of courts

Published online by Cambridge University Press:  15 April 2021

New York University School of Law


What role do courts play in advancing or upholding the political ideal that we call ‘the rule of law’? Does the rule of law require that courts should have authority over all other branches of government, including the legislature? And does it impose constraints on the sort of reasoning and decision-making that courts engage in? This article explores an array of possible answers to these questions, and considers the possibility that the ascendancy of courts in a constitution may represent a form of judicial supremacy that looks remarkably like the uncontrolled rule of men, which the rule of law is supposed to prevent. To preclude that possibility, it is particularly important for courts to recognize that their authority is limited in scope and that they should not be guided by any overall political program other than the program of seeing that constitutional constraints on government are upheld.

Special Issue: Judicial Authority, Legitimacy and the (International) Rule of Law
© The Author(s), 2021. Published by Cambridge University Press

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1 See the discussion of judicial review in Bingham, T, The Rule of Law (Allen Lane, London, 2010) 6062.Google Scholar

2 See the discussion in Waldron, J, ‘Constitutionalism: A Skeptical View’ in Christiano, T and Christman, J (eds) Contemporary Debates in Political Philosophy (Wiley-Blackwell, Chichester, 2009) 267.Google Scholar

3 See Bingham (n 1) 160–70, citing a number of thinkers who believe that the rule of law requires constraints on the sovereignty of parliament.

4 Waldron, J, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346CrossRefGoogle Scholar; Waldron, J, Law and Disagreement (Oxford University Press, Oxford, 1999).CrossRefGoogle Scholar

5 Raz, J, ‘The Rule of Law and Its Virtue’ in The Authority of Law: Essays on Law and Morality (2nd edn, Oxford University Press, Oxford, 2009) 211.Google Scholar

6 Ibid.

7 See, for example, Horwitz, M, ‘The Rule of Law: An Unqualified Human Good?’ (1977) 86 Yale Law Journal 561, 566.CrossRefGoogle Scholar

8 Raz (n 5) 211.

9 I first raised these questions in Waldron, J, ‘Is the Rule of Law an Essentially Contested Concept?’ (2002) 21 Law and Philosophy 137Google Scholar, 142–43 and 147–48.

10 See, for example, Tamanaha, B, On the Rule of Law: History, Politics, Theory (Cambridge University Press, Cambridge, 2004) 9293.CrossRefGoogle Scholar

11 Hobbes, T, De Cive: The English Version (ed Warrender, Howard, Oxford University Press, Oxford, 1983 [(1642]) 94–5 (VI. 9)Google Scholar.

12 See the discussion in T Ginsburg and T Moustafa (eds) Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, Cambridge, 2008).

13 John Locke, Two Treatises of Government (ed Peter Laslett, Cambridge University Press, Cambridge, 1988) 328 (II, §93).

14 Ibid.

15 See, for example, FA Hayek, The Constitution of Liberty (Macmillan, London, 1960) 148–61; Raz (n 5); and L Fuller, The Morality of Law (rev edn, Yale University Press, New Haven, 1969) 33–94.

16 Tamanaha (n 10) 92.

17 Plato, Laws (Dover, New York, 2016) 81 (716): ‘For that state in which the law is subject and has no authority, I perceive to be on the highway to ruin; but I see that the state in which the law is above the rulers, and the rulers are the inferiors of the law, has salvation, and every blessing which the Gods can confer.’

18 See R Epstein, Design for Liberty: Private Property, Public Administration and the Rule of Law (Harvard University Press, Cambridge, MA, 2011) 63 for the view that the ascendancy of law that arises ‘from the bottom up’ (like common law property rights) is a better candidate for the rule of law than law that is understood as a top-down artefact of human power (legislation).

19 T Hobbes, Leviathan (ed Richard Tuck, Cambridge University Press, Cambridge, 1988 [(1651]) 184 (ch 16).

20 Ibid, 224 (ch 29).

21 Hobbes (n 11) 103 (VI. 18).

22 J Harrington, The Commonwealth of Oceana (ed JGA Pocock, Cambridge University Press, Cambridge, 1992) 8 ff; Locke (n 13) 326–30 (II, §§ 89–94); Montesquieu, The Spirit of the Laws (ed Ann Cohler et al, Cambridge University Press, Cambridge, 1989) 154 ff (Bk 11, Chs 2–6); J Madison, A Hamilton and J Jay, The Federalist Papers (ed Lawrence Goldman, Oxford University Press, Oxford, 2008) 256ff and 379ff (numbers 51 by Madison and 78 by Hamilton); AV Dicey, Introduction to the Study of the Law of the Constitution (Liberty Classics, Indianapolis, IN, 1982) 268–73.

23 See Waldron (n 9) 147–48.

24 Madison, Hamilton and Jay (n 22) 380 (no 78 by Hamilton).

25 See A Follesdal, ‘International Human Rights Courts and the (International) Rule of Law: Part of the Solution, Part of the Problem, or Both?’ (in this issue); G Palombella, ‘Non-Arbitrariness, Rule of Law and the “Margin of Appreciation”: Comments on Andreas Follesdal’ (in this issue).

26 See Waldron (n 4).

27 Lochner v. New York, 198 US 45 (1905).

28 See the discussion in Forbath, W, Law and the Shaping of the American Labor Movement (Harvard University Press, Cambridge, MA, 1989) 170ff.Google Scholar

29 Planned Parenthood v Casey, 505 US 833 (1992).

30 Ibid 866. The court cited an observation from Justice Stewart’s dissent in Mitchell v Grant 416 US 600 at 636 (1974): ‘A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government.’

31 Ibid 868.

32 Ibid.

33 See Waldron, J, ‘Five to Four: Why Do Majorities Rule on Courts?’ (2014) 123 Yale Law Journal 1692.Google Scholar

34 See also Postema, GJ, ‘Protestant Interpretation and Social Practices’ (1987) 6 Law and Philosophy 283.CrossRefGoogle Scholar

35 See Fuller, L, ‘Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353.CrossRefGoogle Scholar

36 J Waldron, ‘The Rule of Law and the Importance of Procedure’ in J Fleming (ed) Nomos 50: Getting to the Rule of Law (New York University Press, New York, 2012).

37 See, for the European context, G Ulfstein, ‘Transnational Constitutional Aspects of the European Court of Human (in this issue); W Sadurski, ‘Quasi-Constitutional Court of Human Rights for Europe? Comments on Geir Ulfstein’ (in this issue).

38 See the arguments by J Bentham cited in Postema, G, Bentham and the Common Law Tradition (Oxford University Press, Oxford, 1986) 233ff.Google Scholar

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