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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