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2 Ratio Juris 1 (1989)

handle is hein.journals/raju2 and id is 1 raw text is: Ratio Juris. Vol. 2 No. 1 March 1989 (1-16) copyright © Noel B. Reynolds 1989 Grounding the Rule of Law NOEL B. REYNOLDS Abstract. Although the concept of Rule of Law has been revived and developed vigorously by mid-twentieth century conservative political theorists, contemporary legal positivists have not been impressed. The author reviews this confrontation, outlines the logic for a strong theory of Rule of Law, and surveys the leading attempts to provide compelling grounds for such a theory. Although the actual phrase the rule of law seems to have been popularized first by Dicey, the family of concepts to which it refers has played an important role in men's thinking about their governments from ancient times to the present. Men have long written about the advantages of a government of laws and not of men, of the commonwealth or empire of laws, and of the fortunate peoples who have the law to be their king. The intimate connection between the supremacy of law and the freedoms of the people has been recognized almost unanimously by practical and philosophical commentators in the British and American traditions. Philosophical challenges to this traditional wisdom arose in the nineteenth century. Marxism and positivism each in its own way took a different view of law and rejected the idea that the law somehow could constitute limits on the will of the ruling class or of the sovereign. Rather, law was more pessi- mistically recognized to be the instrument of the powerful for implementing their will. Whether this interpretation of nineteenth century positivists is accurate, it seems to be the interpretation that most affected early twentieth century legal thinkers. The success of these theories can be noted in the rather general view among twentieth century writers that the phenomenon of law is essentially the same in the democracies and in tyrannical states. The presence of law itself cannot be taken as a criterion in judging between the two. These developments did not go completely unchallenged. Today we recognize the importance of the vigorous reassertion of the classical view by A. V. Dicey, first in 1885 and then again through many editions of his influential work (Dicey 1982). But legal theorists were not much swayed. It is true that the ideology of the

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