Sample 2:1 Undergraduate Law Literature Review

What is the Rule of Law?

Introduction

This example literature review seeks to understand how rule of law has been interpreted and described by different academic theorists in order to apply meaning to both the term itself and the concepts which it represents. It is split into three sections. First, it begins with a brief overview of why it is important to define the rule of law. Second, it briefly outlines the methodology through which a literature review of the rule of law has been conducted. Finally, in part three, these frameworks are applied to a detailed review of different theorists in an effort to understand how they interact.

Although this work mainly addresses rule of law in an English law context, the theoretical debate also arises in other common law legal systems such as Australia, Ireland, and the USA. Consequently, examples from other jurisdictions are drawn upon where appropriate.

PART ONE: The need for a definitive definition of rule of law

The most remarkable things about the rule of law is probably the fact that very few lawyers dedicate much time to understanding what it actually is. This is despite it being a ubiquitous component of legal theory which permeates all areas of law at all times. After his retirement from service as Senior Law Lord, Tom Bingham – arguably one of the greatest and most esteemed jurists of English law in the 20^th Century[1] – reflected that although the rule of law was an expression “constantly on people’s lips,” he was not “quite sure what it meant,” despite being one of the most senior judges in the world.[2] He further questioned whether people who used the expression were fully aware of what it meant, or whether they actually meant the same thing when they talked about it.[3] It was this conundrum which proved to be the catalyst for his seminal work “The Rule of Law.”[4]

On a literal level, the construction of the phrase ‘rule of law’ could be said to conjure up images of a political system whereby government is conducted via a series of rules which are legitimately prescribed by law. It is often invoked when lawyers are trying to add an element of special moral authority to a legal argument. This might sound simple enough, but the abstract nature of rule of law means that it is not hard to find examples of instances where the rule of law is employed in a contradictory fashion. For example, in the US Supreme Court case of Bush v Gore[5]– which decided the outcome of the 2000 US presidential election – the doctrine of rule of law was invoked by both sides in support of their respective cases. This led Waldron to ask whether the rule of law is an essentially contested concept.[6] However, there is enough contemporary reference to rule of law in legislative practice that it is impossible to write it off as an empty rhetorical flourish. Rule of law’s critical importance to English law is recognised by the Constitutional Reform Act 2005, which provides that the Act does not adversely affect the “existing constitutional principle of the rule of law”.[7] Craig concludes by quoting Bingham’s view that judges are “not free to dismiss the rule of law as meaningless verbiage […] even if they were inclined to do so.”[8] Bingham made this point in his lecture on the rule of law.[9] However, despite attaching considerable importance to the rule of law, the Constitutional Reform Act declines to define it. This means that although the importance of the rule of law is underlined, its substance is deliberately left abstract.

PART TWO: Rule of Law as an Essentially Contested Concept

In his paper “Essentially Contested Concepts,” Gallie famously argued that some concepts – for example, social justice and democracy – give rise to continuing disputes about their proper use, even among those who agree on their value.[10] Gray expands upon this, suggesting that disputes over such concepts cannot be settled by “empirical evidence, linguistic usage, or the canons of logic alone.”[11] There is a degree of subjectivity in any such assessment. Garver set out three responses which he considered inadequate when assessing an essentially contested concept:

• Dogmatism (i.e., the idea that one person is certain that their answer is correct, and all other answers are wrong);
• Scepticism (i.e., the view that all answers are equally true or equally false); and
• Eclecticism (i.e., the idea that each answer contributes part of the truth).[12]

Recognising the limits of these responses is useful when investigating the meaning of rule of law. It must be noted that there is no inherent contradiction between accepting the abstract nature of rule of law on one hand, while reasoning about competing interpretations on the other. For example, H.L.A. Hart distinguished the generally agreed principle that like cases should be treated alike from the disputed question of which similarities matter.[13] As such, the notion of rule of law as an essentially contested concept has been adopted by the author in conducting this literature review.

PART THREE: Contrasting Definitions of Rule of law

Concepts that would be readily recognised in contemporary settings as rule of law dates back to the dawn of civilisation. In ancient Greece, Aristotle described the idea that “law should govern” above all else, including man.[14] One can only really understand the significance of this principle when it is juxtaposed against the doctrine of the divine right of kings. In March 1610, James VI of Scotland and I of England told Parliament that “The state of monarchy is the supremest thing upon earth, for kings are not only God's lieutenants upon earth and sit upon God's throne, but even by God himself they are called Gods.”[15]In other words, Aristotle forwarded a concept of law which was superior to everyone and everything and applied equally, whereas King James considered royal authority to emanate from a higher religious power. Yet in the same speech he distinguished a lawful king from a tyrant who ceased to govern according to law.

A.V. Dicey and Rule of Law in the Contemporary Age

The term rule of law was popularised by A.V. Dicey in 1885. In his book “An Introduction to the Study of the Law of the Constitution”[16]he stated that rule of law was one of the two main lynchpins of the UK’s uncodified constitution (alongside parliamentary sovereignty).[17] Dicey outlined three elements which he considered to comprise the meaning of the rule of law in the English context:

• “[N]o man is punishable or can be lawfully made to suffer […] except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land;”[18]
• “[N]o man is above the law” meaning that “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;”[19]
• The constitution is pervaded by the rule of law because its general principles are “the result of judicial decisions determining the rights of private persons in particular cases brought before the courts”.[20]

Dicey’s work built upon pre-existing theories, and provides a useful context for understanding subsequent developments. For example, the first of his three rules has a parallel in clause 39 of Magna Carta 1215:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”[21]

It is also evident throughout the Bill of Rights 1689, for example via the prohibition on the monarch suspending laws or their execution without the consent of parliament.[22] Furthermore, historic judicial decisions such as Entick v Carrington,[23]established the notion that the members of the executive (i.e., government), are not above the law, and must have lawful authority to interfere with a citizen’s property.

The DNA of Dicey three principles for describing the rule of law are also clearly evident in many aspects of legal systems and international instruments. Examples include the Fifth and Sixth Amendments of the US Constitution (setting out the right to due process in legal proceedings and fair trial guarantees in criminal prosecutions respectively),[24] Articles 6 and 7 of the European Convention on Human Rights (i.e., the Right to a fair trial and a prohibition on retrospective punishment),[25] and Article 9 of the United Nations Universal Declaration of Human Rights (No one shall be subjected to arbitrary arrest, detention or exile).[26]

‘Thick’ and ‘thin’ rule of law

These examples show that the rule of law from a Diceyan perspective has a number of components. Dicey emphasises equality before the law and the protection of rights through the ordinary courts. Bingham expressly includes protection of fundamental human rights. These writers set out a vision for the rule of law whereby a neutral impartial system of governance exists with the purpose of protecting citizens from tyranny.^[27] Bingham in particular invokes powerful emotive examples in support of his position. For example, he asks whether transporting a persecuted minority to a concentration camp could satisfy the rule of law even if the transport took place under detailed laws scrupulously observed.^[28] He further reiterated this point by arguing that “a state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law.”^[29]

However, not all commentators agree. In essence, those who believe human rights is a vital component within the rule of law subscribe to what is generally described in the literature as ‘thick’ rule of law. This must be contrast with those who believe that law and morality should be detached when discussing the rule of law. This is generally described as ‘thin’ rule of law. Ardents of this school typically seek to avoid attaching a value judgment to law, seeing it purely as a system of arbitration rather than a vehicle for advancing civil liberties.

For example, Austin splits law and morality, suggesting that “the existence of law is one thing; its merit or demerit is another.”^[30] This means that a law can be legally valid even if it is unjust or immoral. Its validity alone does not establish that it satisfies the rule of law. The natural conclusion of such a train of thought is to dismiss the notion that rule of law has to protect human rights and civil liberties at all. This seems counter intuitive given the influence that concepts of the rule of law has had on the development of modern democratic societies, and advances such as the right to a fair trial and a prohibition on arbitrary detention. Cotterrell explains that, for Austin, rights arise from rules laid down by government. It is in this sense that he says “there can be nothing inherently sacred about civil or political liberties.”^[31]

The most renowned proponent of the ‘thin rule of law point of view is probably Raz. In his 1979 account he distinguishes the rule of law, which requires laws capable of guiding conduct, from the justice of their content.^[32] He was of the opinion that the denial of human rights, extensive poverty, racial segregation, sexual inequalities, religious persecution and even slavery could exist within a legal system without violating the rule of law, provided the system met requirements such as clear, prospective and relatively stable laws, and access to independent courts.^[33] Raz was at pains to stress that he was not advocating such features in a legal system. His argument was more that “the promiscuous use” of the term rule of law threatened to deprive it of any potency. Raz later placed more emphasis on whether government acts with the evident intention of serving the interests of the governed.[34] Craig explains Dicey’s first principle by stating that “laws under which people are condemned should be passed in the correct legal manner and that guilt should only be established through the ordinary trial process.”^[35] He distinguishes between lawful authority, laws capable of guiding conduct, and substantive accounts that also require protection of rights. He does not treat these as a single agreed definition.[36]

The Application of Theory to Practice

On one hand, proponents of ‘thin’ rule of law, such as Raz, discount the notion that human rights is an intrinsic element of the rule of law. Obviously, this position is disputed on conceptual grounds by Bingham. Ironically, Dicey and Bingham were both writing about English law, where the doctrine of parliamentary sovereignty makes it difficult for the judiciary to uphold the rule of law in extreme circumstances. This becomes apparent when contrast with the US constitutional settlement.

In the decision of Marbury v Madison, the United States Supreme Court concluded that it had the right to strike down primary legislation as unconstitutional where it conflicts with the US Constitution. The provision at issue purported to enlarge the Court’s original jurisdiction.[37] The doctrine of Parliamentary Sovereignty means that the Parliament at Westminster can make or unmake any law and that, under the orthodox account, no other body may set aside its Acts.[38] Under that principle, the UK courts lack a similar general power to strike down an Act of the Westminster Parliament for being contrary to the rule of law. Indeed, the supremacy of parliament is such that Wade & Forsyth assert that if the courts go too far in challenging the authority of the legislature, Parliament may curtail their jurisdiction by enacting new laws.^[39] Allan has countered such arguments by suggesting that if a legislative breach of human rights principles was sufficiently serious, then the courts would be freed from the usual confines of Parliamentary Sovereignty.[40] In fact, he asserted that the UK courts would be under an obligation to do so.[41] However, older cases such as Madzimbamuto v Lardner-Burke[42]suggest that a court’s objections to an Act would not by themselves invalidate it. Lord Reid distinguished constitutional impropriety from absence of legal power:

“If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.”[43]

However, the Human Rights Act 1998[44] requires courts, so far as possible, to interpret legislation compatibly with Convention rights. Where a compatible interpretation of a Westminster Act is impossible, specified courts may declare it incompatible, but the provision remains in force. The limits of parliamentary sovereignty in an extreme case remain disputed. Parliament’s response to Cart illustrates the practical distinction: it excluded judicial review of most Upper Tribunal refusals of permission to appeal from the First-tier Tribunal, subject to specified exceptions.[45]

Conclusion

These might be highly conceptual situations which rarely arise in the normal interaction between citizen and state, but they are still unresolved anomalies which outline some of the challenges in identifying clear definitions and lines of demarcation for the application of the rule of law. This harks back to the manner in which the rule of law could be described as an ‘essentially contested concept.’ It is impossible to clearly define without referring to different concepts which are occasionally contradictory and ‘woolly’ around the edges. However, this should not preclude an attempt at analysis, nor should it diminish the importance of the rule of law as a guiding principle via which executive, judicial, and legislative actions can be critically appraised and assessed. In short, there is no single agreed definition of the rule of law. Even so, the House of Lords Constitution Committee found common ground in 2025 on legality, equality before the law, independent courts, legal certainty and access to justice.[46] One must merely be aware of the different means by which it can be construed, before tailoring it to specific scenarios where appropriate.

[2724]

Bibliography

Cases

Bush v Gore, 531 U.S. 98 (2000)

Entick v Carrington [1765] EWHC KB J98

Marbury v. Madison, 5 U.S. 137 (1803)

Madzimbamuto v Lardner-Burke [1969] 1 AC 645

R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28

Legislation and Treaties

Bill of Rights 1688

Constitution of the United States of America 1789

Constitutional Reform Act 2005

European Convention on Human Rights 1950

Human Rights Act 1998

Tribunals, Courts and Enforcement Act 2007

Judicial Review and Courts Act 2022

Magna Carta 1215

United Nations Universal Declaration of Human Rights 1948

Books

Aristotle, Politics 3.16, c.f., Gless S., Vervaele J.A., “Law Should Govern: Aspiring General Principles for Transnational Criminal Justice” Utrecht Law Review 9(4), 2013

Allan T.R.S., Law, Liberty, and Justice (Oxford: Clarendon Press, 1993)

Austin J., The Province Of Jurisprudence Determined (London, 1832)

Bingham T., The Rule of Law (Penguin Books, 2011)

Cotterrell R.B.M., The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Butterworths, 1989)

Dicey A.V., “An Introduction to the Study of the Law of the Constitution” (first published 1885, 10th edn, Macmillan, 1959, reprinted 1960)

Hart H.L.A., The Concept of Law (Oxford University Press, 1961)

Raz J., The Authority of Law, Essays on Law and Morality, The Rule of Law and its Virtue (Clarendon Press, Oxford, 1979)

Trebilcock M., & Daniels R., Rule of Law Reform and Development: Charting the Fragile Path of Progress, (1^st Edition, Elgar Publishing, 2008)

Wade H.W.R., & Forsyth C., Administrative Law, 10th edn (Oxford: Oxford University Press, 2009)

Webley L., & Samuels H., Complete Public Law: Text, Cases and Materials, (3^rd Edition, Oxford University Press, 2015)

Journal Articles and Reports

Craig P., ‘The Rule of Law’ (Select Committee on Constitution, 2007), Appendix 5 Click here to read the full article

Gallie W.B., “Essentially Contested Concepts,” Proceedings of the Aristotelian Society Vol.56, (1956)

Garver E., “Rhetoric and Essentially Contested Arguments”, Philosophy and Rhetoric Vol.11, No.3, (1978), p.156-172

Gray J.N., “On the Contestability of Social and Political Concepts.” Political Theory, 5(3), (1977)

Waldron J., “Is the Rule of Law an Essentially Contested Concept (in Florida)?” Law and Philosophy 21 (2):137-164 (2002)

J. Raz, “The Law’s Own Virtue”, Oxford Journal of Legal Studies (2019) 39(1), 1–15.

House of Lords Constitution Committee, The rule of law: holding the line against tyranny and anarchy (2025), HL Paper 211, paras 25–26.

Speeches

James VI of Scotland and I of England, Speech at Whitehall Palace, 21 March 1610 Click here to read the full article

News Reports

Kennedy M., “Tributes to Lord Bingham, 'the greatest judge of our time'” The Guardian (12^th September 2010) Click here to read the full article

Footnotes

[1] M. Kennedy, “Tributes to Lord Bingham, 'the greatest judge of our time'” The Guardian (12^th September 2010) Click here to read the full article

[2] T. Bingham, The Rule of Law (Penguin Books, 2011), p.vii

[3] ibid

[4] T. Bingham, The Rule of Law (Penguin Books, 2011)

[5] Bush v Gore, 531 U.S. 98 (2000)

[6] J. Waldron, “Is the Rule of Law an Essentially Contested Concept (in Florida)?” Law and Philosophy 21 (2):137-164 (2002)

[7] Constitutional Reform Act 2005, s.1(a)

[8] P. Craig, ‘The Rule of Law’ (Select Committee on Constitution, 2007), Appendix 5 Click here to read the full article

[9] Lord Bingham, ‘The Rule of Law’ Cambridge Law Journal (2007) 66(1) pp.67-85

[10] W.B. Gallie, “Essentially Contested Concepts,” Proceedings of the Aristotelian Society Vol.56, (1956), pp.167–198.

[11] J.N. Gray, “On the Contestability of Social and Political Concepts.” Political Theory, 5(3), (1977), p.344

[12] E. Garver, “Rhetoric and Essentially Contested Arguments”, Philosophy and Rhetoric Vol.11, No.3, (1978), p.156-172

[13] H.L.A., Hart, The Concept of Law (Oxford University Press, 1961), p.156

[14] Aristotle, Politics 3.16, c.f., S. Gless, J.A. Vervaele, “Law Should Govern: Aspiring General Principles for Transnational Criminal Justice” Utrecht Law Review 9(4), 2013

[15] James VI of Scotland and I of England, Speech at Whitehall Palace, 21 March 1610 Click here to read the full article

[16] A.V. Dicey, “An Introduction to the Study of the Law of the Constitution” (first published 1885, 10th edn, Macmillan, 1959, reprinted 1960)

[17] ibid, p.39, 188-196

[18] ibid, p.188

[19] ibid, p.193

[20] ibid, p.195

[21] Magna Carta 1215, Clause 39

[22] Bill of Rights 1688, Ch 2, 1

[23] Entick v Carrington [1765] EWHC KB J98

[24] Constitution of the United States of America 1789, 5^th and 6^th Amendments

[25] European Convention on Human Rights 1950, Article 6 and 7.

[26] United Nations Universal Declaration of Human Rights, Article 9

[27] L Webley & H Samuels Complete Public Law: Text, Cases and Materials, (3^rd Edition, Oxford University Press, 2015), p.13

[28] T. Bingham The Rule of Law, (1^st Edition, Penguin, 2010), p.67

[29] ibid

[30] J. Austin, The Province Of Jurisprudence Determined (London, 1832), p.184-85

[31] R.B.M. Cotterrell The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Butterworths, 1989), p.61

[32] J Raz , The Authority of Law, Essays on Law and Morality, The Rule of Law and its Virtue (Clarendon Press, Oxford, 1979), p.211

[33] ibid

[34] ibid. See also J. Raz, “The Law’s Own Virtue”, Oxford Journal of Legal Studies (2019) 39(1), 1–15.

[35] P. Craig, ‘The Rule of Law’ (Select Committee on Constitution, 2007), Appendix 5 Click here to read the full article

[36] ibid

[37] Marbury v. Madison, 5 U.S. 137 (1803)

[38] A.V. Dicey “An Introduction to the Study of the Law of the Constitution (first published 1885, 10th edn, Macmillan, 1959, reprinted 1960), p.39-40

[39] H.W.R. Wade & C. Forsyth, Administrative Law, 10th edn (Oxford: Oxford University Press, 2009), p.26

[40] T.R.S. Allan, Law, Liberty, and Justice (Oxford: Clarendon Press, 1993), p.282.

[41] ibid

[42] Madzimbamuto v Lardner-Burke [1969] 1 AC 645

[43] ibid, p.723

[44] Human Rights Act 1998, ss.3 and 4(2), (6)

[45] R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28 at [73]. Tribunals, Courts and Enforcement Act 2007, s.11A, inserted by Judicial Review and Courts Act 2022, s.2.

[46] House of Lords Constitution Committee, The rule of law: holding the line against tyranny and anarchy (2025), HL Paper 211, paras 25–26.