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69 B.U. L. Rev. 781 (1989)
Issue 4

handle is hein.journals/bulr69 and id is 789 raw text is: VOLUME 69 NUMBER 4 JULY 1989 BOSTON UNIVERSITY LAW REVIEW RECONSIDERING THE RULE OF LAW MARGARET JANE RADIN* I. INTRODUCTION The ideal of the rule of law, not of men' calls upon us to strive to ensure that our law itself will rule (govern) us, not the wishes of powerful individuals. According to this traditional ideal, government must be by settled, standing Laws, not by Absolute Arbitrary Power.2 Although the Rule of Law ideal is central to our legal tradition, it is deeply contested. Among those who affirm the traditional ideal there is no canonical formulation of its meaning, and criti- cal theorists argue that the Rule of Law is mere ideology that should be jet- tisoned. In this essay I suggest that it is too soon to throw out the Rule of Law * Carolyn Craig Franklin Professor of Law, University of Southern California Law Center. This article is an expanded and revised version of my lecture at Boston University School of Law presented on March 3, 1988. Earlier versions were presented to law faculty workshops at Tulane, Southern California, Michigan, and Yale. I am grateful to the hearers on these occasions; many of their comments range beyond the scope of the present essay, but they will continue to motivate me in further work. I am grateful, as well, to the many colleagues and friends whose sharp insight and critical honesty keep me trying to dispel the haze. I For obvious reasons, because I am considering the Rule of Law in today's context, I shall rephrase the ideal as the rule of law, not of individuals. Yet we must not forget that when the ideal developed, and during most of its long history, it was incon- ceiyable that any individuals who were not men could be a part of political life. 2 J. LOCKE, Of the Extent of the Legislative Power, § 137 in Two TREATISES OF GOVERNMENT (P. Laslett rev. ed. 1970) (3d ed. 1698) (emphasis omitted). The formu- lation of the term the Rule of Law is sometimes credited to the nineteenth-century British jurist Albert Venn Dicey, who elaborated upon three characteristics of the rule or supremacy of law: absence of arbitrary power on the part of the government; ordi- nary law administered by ordinary tribunals; and general rules of constitutional law resulting from the ordinary law of the land. See A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 179-92 (1908).

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