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Minnesota Journal of International Law

2009

Rule of Law: What Does It Mean

Robert Stein

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 Cite as: 18 Minn. J. Int'l L. 293 (2009)

Rule of Law Symposium

Rule of Law: What Does it Mean?

Robert Stein*

I congratulate the Editors of the Journal of International

Law on organizing this Symposium on the subject of the Rule of
Law, specifically, Creating a Rule of Law Culture. The Journal
was established during the time I served as Dean of the Law
School, and I take pride in the way it has grown through the
years.
When I returned to the faculty of the Law School two years
ago, I was eager to bring to the curriculum of the school a course
on the rule of law and to stimulate and encourage scholarship
on this subject. The rule of law movement has been a major
development in the world over the past two decades, a
development in which I was substantially engaged during the
time I served as Executive Director of the American Bar
Association. Until now, this subject has received little attention
in the curricula of our nation's law schools. This curricular void
will be addressed in a presentation later in this Symposium. A
Rule of Law Seminar has now been established at this Law
School, and I am delighted that the Journal editors decided to
focus the scholarship of this Symposium on this important
subject.
An enormous amount of technical legal assistance work has

Professor Robert Stein, Everett Fraser Professor of Law, University of Minnesota

Law School. I would like to thank Nicholas A. Smith, 2008 graduate of the
University of Minnesota Law School, and Charles E. Dickinson, candidate for
graduation in 2009 from the University of Minnesota Law School, for their able
research assistance in the preparation of this article. This article is adapted from
Professor Stein's remarks at the Minnesota Journal of International Law's Rule of
Law Symposium on November 14, 2008.
294 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

been occurring throughout the world in recent years, primarily

in newly established nation states and other underdeveloped
countries, to develop a legal infrastructure to support fragile
democratic governments in those states.' This 2
work has been
described collectively as rule of law programs.
After the fall of the Wall in Berlin in 1990 and the collapse
of the Soviet Union in 1991, a number of new nations came into
existence. In fact about twenty of the new United Nations
member states after 1990 emerged directly as a result of the fall
of the Soviet Union.3 Most, if not all, of these nations have, on
paper at least, a democratic form of government. There initially
was wide-spread optimism about the future, especially in
western countries, due to the fact that as a result of these
changes, more people were living under a democratic form of
government than at any previous time in human history. In
fact, it has been estimated that between 1950 and the end of the
20th Century we had moved from less than one of every three
persons on the planet living in a democratic state to nearly two
out of every three persons in the world living under a
democratic form of government.4
Unfortunately, that early optimism has been tempered by
events over the past fifteen plus years, as it became apparent
that a democratic form of government does not ensure the
freedom and liberty of its citizens and inhabitants. A
democratic form of government may in fact allow and encourage
a majority to abuse and deny the rights of minorities. The
democratic process itself may be corrupted, resulting in a
despotic government. Out of this awareness the rule of law
movement was born.
The American Bar Association (ABA) has been a leader in
rule of law work. Its initial program was established in 1990,
immediately following the fall of the Wall, in order to assist law
reforms in the central European nations that had formerly been
under the influence of the Soviet Union and in the newly
independent states that had been part of the Soviet Union. The
ABA program was initially called the Central and East

1. See, e.g., American Bar Association, About ABA Rule of Law Initiative,
http://www.abanet.org/rol/about.shtml (last visited Mar. 8, 2009).
2. Id.
3. See United Nations, Growth in United Nations Membership, 1945-Present,
http://www.un.org/members/growth.shtml (lastvisited Mar. 8, 2009).
4. Lee A. Tavis, Corporate Governance and the Global Social Void, 35 VAND.
J. TRANSNAT'L L. 487, 495 (2002) (citing 1999 Freedom House Survey).
2009] MEANING OF THE RULE OF LA W

European Legal Initiative, known by the initials CEELI. The

program later was renamed the Central Europe and Eurasian
Legal Initiative-still CEELI-after many of the original
Central European countries graduated from the program
because of their successful economic and legal development-
countries-like Poland, the Czech Republic, and the Baltic States.
The new name reflected the fact that much of the work now is
occurring in Eurasia, especially in the so-called "Stans"-such
as Afghanistan, Kazakhstan, Uzbekistan, Kyrgyzstan,
Turkmenistan, and Tajikistan. In the nearly twenty years of
the CEELI program more than 5,000 lawyers and judges have
gone to this region as a kind of legal Peace Corps to carry out
such activities as drafting constitutions and legislation, training
judges, developing law school curricula, organizing bar
associations, educating the public about the law, and generally
strengthening the legal system in each of these countries. This
Symposium will include a presentation and paper by the co-
founders of CEELI, Sandy D'Alemberte and Homer Moyer, and
the original executive director of this remarkable program,
Mark Ellis.
Because of the success of CEELI, the ABA later created rule
of law programs in countries in Asia, Latin America, Africa and
the Middle East. Many other bar associations and NGOs have
also undertaken similar technical legal assistance programs
around the world. The London-based International Bar
Association has established a number of rule of law programs in
various countries as part of its Human Rights Institute. Several
other national bar associations, in addition to the ABA, have
law reform programs advancing the rule of law. Perhaps the
first among those is the Swedish Bar Association which has
been very active in carrying out these programs. The Swedish
Bar Association joined with the American Bar Association and
other organizations to form a NGO known as the International
Legal Assistance Consortium-ILAC' ILAC's mission is to
provide assistance to nations in post conflict situations by
bringing in a group of advisors who have been trained and
prepared to assist in reestablishing the rule of law after the
collapse of a government and the administration of justice in a
country.6

5. See International Legal Assistance Consortium, http:lwww.ilac.se/.

6. See International Legal Assistance Consortium, Why ILAC?,
http://www.ilac.se/whyilac.html.
296 MINNESOTA JOURNAL OFINT'L LAW [Vol. 18:2

All of these programs collectively have been referred to as

the rule of law movement. A threshold question, as we begin
this Symposium, is what do we mean by the words the rule of
law? It's a phrase that has been used with increasing frequency
in recent years. The words are often invoked to support a
variety of political agendas. "Support my proposals," we are
frequently urged by speakers from all points on the political
spectrum, "because this or that will promote the rule of law."
Government leaders, judges, scholars, lawyers, speakers of all
backgrounds invoke the rule of law as both the means to an end
and as an end in itself. Everyone, it seems, is in favor of the
rule of law.
The phrase has become chameleon-like, taking on whatever
shade of meaning best fits the author's purpose. But without a
clear definition, the rule of law is in danger of coming to mean
virtually everything, so that it may in fact come to mean
nothing at all. One scholar, the late Harvard political theorist
Judith Shklar, has written that the phrase "has become
meaningless thanks to ideological abuse and general over-
use .... No intellectual effort need therefore be wasted on this
bit of ruling-class chatter."'
I disagree with Professor Shklar. Because of its potential to
inspire individual actors and inform political and social change,
I believe it is important to rigorously identify a meaning to the
rule of law. To the extent we can more clearly identify the
principles and values that are inherent in this concept, we can
more effectively bring about the political and legal reforms that
are necessary to advance it.
Two seminal writings in the past century have influenced
thinking about this subject. Albert Dicey, a British lawyer and
scholar, addressed the meaning of the rule of law in an
important book in 1885.8 In "The Rule of Law," Dicey offered a
definition of the words, after first noting what many other
writers have noted: that the phrase is very difficult to define.9
Dicey concluded that the term included at least three concepts:
first, the supremacy of the law as opposed to arbitrariness or
even wide discretion by governments; second, the equality of all
persons before the law; and third, in England, principles

7. Judith N. Shklar, Political Theory and The Rule of Law, in THE RULE OF
LAW: IDEAL OR IDEOLOGY 1 (Allan C. Hutchinson & Patrick Monahan eds., 1987).
8. ALBERT V. DICEY, The Rule of Law, in INTRODUCTION TO THE STUDY OF THE
LAW OF THE CONSTITUTION 181 (St. Martin's Press 1959) (1885).
9. Id. at 187.
20091 MEANING OF THE RULE OF LAW

establishing the rights of individuals developed by case law

through the centuries in that country.1
Some fifty years later, Austrian economist, political
theorist, and Nobel Laureate Friedrich Hayek published
another influential writing adding meaning to the concept of
rule of law. In 1960 Hayek wrote an important paper entitled,
"The Origins of the Rule of Law,"' 1 tracing the history of the
concept of the rule of law through many centuries. Starting
with the Greek and then the Roman philosophers, the British
philosophers, and the French enlightenment, Hayek identified
from these writings the ideas represented by the words the rule
of law. Hayek argued persuasively that this concept has been
understood, expressed, and advocated by philosophers for more
than two thousand years.
Hayek credits Aristotle for introducing the concepts of
separation of powers, predictability and superiority of law as
essential characteristics of a free state. He further attributes
to Aristotle the genesis of the phrase, "government by laws and
not by men."'3
Aristotle contended over two thousand years prior to the
American founding that the law maker should be separated
from the judge and jury. 4 This is so because lawmakers pass
general laws prospectively, "while ...the juror [is] actually
judging present and specific cases."'5 Aristotle also argued that
laws should be predictable and non-arbitrary. 6 Aristotle wrote
that governance by law is preferable to majority rule.17
"Anyone," he wrote, "who bids the law to rule seems to bid god
and intellect alone to rule, but anyone who bids a human being
to rule adds on also the wild beast."' 8 In short, Aristotle
contended, the law is superior and binds everyone.
The Greeks had a word that captures much of the meaning
of the rule of law--"isonomia." Translated, isonomia means

10. Id. at 188-96.

11. FRIEDRICH A. HAYEK, The Origins of the Rule of Law, in THE CONSTITUTION
OF LIBERTY 162 (University of Chicago Press 1960).
12. Id. at 9.
13. Id.
14. ARISTOTLE, RHETORIC 32 (George A. Kennedy trans., 2d ed. 2007).
15. Id.
16. Id. ('It is highly appropriate for well-enacted laws to define everything as
exactly as possible and for as little as possible to be left to the judges ....
").
17. See ARISTOTLE, POLITICS bk. III, ch. 16, at 111 (Peter L.P. Simpson trans.,
Univ. of N.C. Press 1997).
18. Id.
 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

equality of laws to all manner of persons.19 To the Greeks, the

concept of isonomia was very important and, indeed, to some the
word represented an even higher virtue than democratia, the
idea which we identify with the Greek city states.
The Roman philosopher Cicero, writing almost 300 years
after Aristotle, agreed that men should be mere mouthpieces for
the law to express itself.2" Cicero argued that restricting judicial
discretion was a necessary element to achieve freedom of the
law. 21 The idea of limiting judicial discretion was motivated
primarily by the rule of law's disdain for arbitrariness.
Abhorrence of arbitrariness is a major theme that runs through
all the rule of law writing through the centuries. They
consistently expressed the view that individual decisions can
not be trusted because there is a strong possibility they will be
arbitrary.
Hayek also traced the development of the rule of law
concept through the writings of the great British legal scholars:
Edward Coke, William Blackstone, David Hume, and of course,
John Locke, who had such an enormous influence on our
founding fathers.2 And these writings advocated the same
important principles concerning the rule of law: the law should
be superior, the law must be non-arbitrary, the law must be
enforced by an independent judiciary separate from the
lawmakers, the law must treat all persons equally.
The concept of the rule of law was clearly understood by the
American founders. Even before the colonies formally declared
their independence, Thomas Paine, in a widely circulated tract
entitled "Common Sense," wrote "so far as we approve of
monarchy, that in America THE LAW IS KING. For as in
absolute governments the King is Law, so in free Countries the
Law ought to be King; and there ought to be no other."23
The founding fathers embedded these ideas in our
remarkable Constitution and incorporated in it the important
values of separation of powers, an independent judiciary, a
government under law, and equality of all before the law.

19. HAYEK, supranote 11, at 164.

20. See CICERO, On the Laws bk. III, in ON THE COMMONWEALTH & ON THE
LAWS 157 (James E.G. Zetzel ed., Cambridge Univ. Press 1999).
21. See id. bk. II, at 132-33 (discussing the role of higher laws, "which rule[ ]
the entire universe through the wisdom of [their] commands and prohibitions," in
the legislative process).
22. HAYEK, supra note 11, at 168-73.
23. THOMAS PAINE, COMMON SENSE 19 (Solomon Southwick 1776).
2009] MEANING OF THE RULE OF LAW

The last twenty years have seen a great resurgence of

thought and talk about the rule of law and its role in shaping
and maintaining free societies. I don't recall the phrase being
used when I was a student in law school, but now it is a
dominant and fundamental core concept in the idea of freedom
and justice. On the American side of the Atlantic, not least
among those commentators taking up advocacy of the rule of
law are several Justices of the Supreme Court of the United
States. Two Justices in particular-Justice Anthony M.
Kennedy and Justice Sandra Day O'Connor-in several
speeches have either explicitly or implicitly through
illustrations and examples sought to define the rule of law and
identify its essential constituent parts.
Justice Kennedy has been the most detailed in his
description of the rule of law. In an address he delivered to the
American Bar Association in 2006-amended a few days later
by an address he delivered in Kuala Lumpur-Justice Kennedy
set forth his definition, at a minimum, of a society governed by
the rule of law in three paragraphs:24
"1. The Law rests upon known, general principles applicable
on equal terms to all persons. It follows that the Law is superior
to, and thus binds, the government and all its officials."25
In this first paragraph of his definition, Justice Kennedy
includes several concepts identified by the ancient
philosophers-the law is known, not arbitrary; the law applies
equally; and the law is superior.
"2. The Law must respect and preserve the dignity,
equality, and human rights of all persons."26
Justice Kennedy's definition includes a moral component to
the rule of law. In Nazi Germany there were laws, and the laws
were enforced, but this is not what is meant by the rule of law.
What was missing there was a moral content, which Justice
Kennedy described as "the dignity, equality, and human rights
of all persons." Absent this moral content, the concept may be
referred to as rule BY law, rather than rule OF law.
Justice Kennedy's second paragraph continues with the
words, "To these ends the Law must establish and safeguard the
constitutional structures necessary to build a free society in

24. Anthony M. Kennedy, Written Constitutions and the Common Law

Tradition, 20th Sultan Azlan Shah Law Lecture in Kuala Lumpur, Malaysia 11
(Aug. 10, 2006) (transcript on file with the author).
25. Id.
26. Id.
 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

which all citizens have a meaningful voice in shaping and

enacting the rules that govern them."27 In this part of his
definition, Justice Kennedy raises an important issue: is
democracy an essential requirement of the rule of law? I believe
that it is. It might be possible to imagine a benevolent dictator
who would provide all of these virtues for a society, but none can
be identified in human history. Our experience supports the
conclusion that a government in which the citizens participate
in developing the rules by which they are bound is an essential
element of the rule of law.28
Justice Kennedy's definition continues with a third
paragraph: "3. The Law must devise and maintain systems to
advise all persons of their rights and it must empower them to
fulfill just expectations and seek redress of grievances without
fear or penalty of retaliation."29
In other words, the law must be enforceable.
Justice Sandra Day O'Connor, in remarks focused primarily
on an independent judiciary which she has called the "lynchpin"
of the rule of law, identified several "values" of the rule of law
which she regarded as fundamental." First, she asserted that
"[t]he Rule of Law requires that legal rules be publicly known,
consistently enforced, and even-handedly applied." 1 The
separation of powers is "essential in maintaining the Rule of
Law" in large part because it ensures decisions are made non-
arbitrarily.32 The law is superior to any group or person
"however powerful."33 And the law should "always constrain the
rule of man."34 Justice O'Connor's definition contains many of
the concepts identified by the Greek, Roman, and British
writers.
Justice O'Connor elevated an independent judiciary as more
than just an element of the rule of law, but in fact "the
foundation that underlies and supports the Rule of Law."35 The
judiciary plays an essential role in giving life to other values,

27. Id.
28. See id.
29. Id. at 12.
30. Sandra Day O'Connor, Vindicating the Rule of Law: The Role of the
Judiciary,2 CHINESE J. INT'L L. 1, 6-7 (2003).
31. Id. at 1.
32. Id. at 2. Justice O'Connor recognized as a fundamental rule of law value
that decisions are made "through a process of reasoned decision-making." Id. at 7.
33. Id. at 4.
34. Id. at 8.
35. Id. at 3.
2009] MEANING OF THE RULE OF LAW

such as predictability and transparency. 6 In her characteristic

direct manner, she described an independent judiciary as
meaning the judges cannot do "any crazy thing [they] want," but
must act in a fair and impartial way. 7
Current scholarship and thinking about the rule of law has
also occurred on the other side of the Atlantic. In 2006, Law
Lord Thomas Bingham, delivered the Sir David Williams lecture
on the subject of the rule of law. 8 In his address he noted that
the English Constitutional Reform Act of 2005 declared the rule
of law to be a constitutional principal in the United Kingdom
but did not define it. 9 Since the statute did not define the rule
of law, Lord Bingham undertook in this important lecture to set
forth the values that he believed constituted the rule of law. He
began by noting, as have so many other writers, how difficult
the phrase is to define.
Lord Bingham offered this definition of the rule of law:
"[A]ll persons and authorities within the state, whether public
or private, should be bound by and entitled to the benefit of laws
publicly and prospectively promulgated and publicly
administered in the courts."4 ° That is, the law is superior,
applies equally, is known and predictable, and is administered
through a separation of powers. Lord Bingham followed up this
definition by setting forth eight sub-rules that comprise the
general principles he expressed.' Those sub-rules incorporate
many of the concepts already identified: the law is accessible,
clear, predictable, non-arbitrary, just, applies equally, protects
human rights, resolves disputes without prohibitive cost or
delay, and is enforceable.
More recently, the American Bar Association convened a
World Justice Project in Vienna in 2008 to examine and promote
the rule of law. 2 As part of that project, the ABA developed a

36. Id. at 7.
37. Sandra Day O'Connor, Address at Dedication of the CEELI Institute (June
8, 2007), as in CEELI INST. NEWSL. (CEELI Inst., Prague, Czech Rep.), June 2007,
at 2, available at http://www.millerchevalier.com/files/News/56554f79-d2b5-4875-
85cd-009262d9f307/PresentationNewsAttachment/9a6109aa-8fl5-4dab-a2c-
lflcf03f3774/CEELI%20-%20Villa%2ODedication%20Newsletter%20.pdf.
38. Thomas Bingham, Rt. Hon. Lord, House of Lords, Sixth Sir David Williams
Lecture: The Rule of Law (Nov. 2006), available at
http://www.cpl.law.cam.ac.uk/Media/THE%20RULE%200F%20LAW%202006.pdf.
39. Id. at 1-2.
40. Id. at 5.
41. See id. at 6-34.
42. See American Bar Association, World Justice Project,
http://www.worldjusticeproject.org/ (last visited Mar. 8, 2009).
 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

working definition of the rule of law that includes many of the

same concepts previously identified.43 The World Justice Project
also developed a rule of law index-a series of questions to ask
about the circumstances in a specific nation state-in order to
assist the leaders of that nation to assess the degree to which
the rule of law is present or absent in that country.'
To return to the question: what do we mean when we speak
of the rule of law? We have more than two thousand years of
writing and thinking about the rule of law to inform us-this is
not a new, undeveloped set of ideas. Philosophers and scholars
from different eras have identified values embraced by societies
throughout history defining the meaning of the rule of law.
Building on the common themes of ancient and modern writers,
philosophers and jurists, I offer the following definition as ideal
characteristics of a society governed by the rule of law:
1. The law is superior to all members of society, including government
officials vested with either executive, legislative, or judicial power.
2. The law is known, stable, and predictable. Laws are applied equally
to all persons in like circumstances. Laws are sufficiently defined and
government discretion sufficiently limited to ensure the law is applied
non-arbitrarily.
3. Members of society have the right to participate in the creation and
refinement of laws that regulate their behaviors.
4. The law is just and protects the human rights and dignity of all
members of society. Legal processes are sufficiently robust and
accessible to ensure enforcement of these protections by an
independent legal profession.
5. Judicial power is exercised independently of either the executive or
legislative powers and individual judges base their decisions solely on
facts and law of individual cases.
This definition should not appear revolutionary; it is based
upon the words and ideas of jurists at the highest level of our

43. Id. The definition includes four universal principals that comprise the rule
of law: 1) the government and its officials and agents are accountable under the law;
2) the laws are clear, publicized, stable and fair, and protect fundamental rights,
including the security of persons and property; 3) the process by which the laws are
enacted, administered and enforced is accessible, fair and efficient; and 4) the laws
are upheld, and access to justice is provided, by competent, independent, and ethical
law enforcement officials, attorneys or representatives, and judges, who are of
sufficient number, have adequate resources, and reflect the makeup of the
communities they serve. Id.
44. See American Bar Association, World Justice Project,
http://www.worldjusticeproject.org/rule-of-law-index/ (last visited Mar. 8, 2009).
2009] MEANING OF THE RULE OF LAW 303

nation, our founding fathers, and the philosophers and writers

that helped lay the ideological foundation for western
democracy. Together these rule of law values ensure that
individuals are offered their best chance of fulfilling their
maximum potential.
The rule of law, in the purist sense, is an ideal, a goal,
something to be strived for. As an ideal, it is never fully
achieved. Its presence or absence should be judged in relative
terms; what is possible in an advanced western democracy may
not be possible in a developing nation. No country may
rightfully claim perfect adherence to these ideals. The rule of
law should be viewed as a lodestar to which counties can turn
for guidance now and in the future. It is our most fundamental
value.