One rule to rule them all? Rules of law against the rule of law

Abstract

This article argues that no matter which definition of the rule of law one adopts, there are rules of law that are in tension with the rule of law. While the rule of law is indeed a 'rule', which often demands primacy, legal systems facilitate departures from the rule of law through judicially developed rules of law, for example, standing, political questions, immunity, and suspensions of invalidity. These judge-made rules give public officials flexibility in the observance of other rules. Their effect (though not necessarily purpose) is to allay the often strict demands of the rule of law by helping public officials negotiate their legal obligations to the point of disregarding the rules that they are otherwise bound to obey. The purpose of this article is thus twofold. First, it demonstrates how the rule of law exists alongside other rules of law. In cases of conflict, the rule of law might not have the upper hand. Second, and more important, the threat to the rule of law is not just exogenous to the legal system, but also endogenous; it is the result of a legal system that routinely professes its commitment to the rule of law, but also creates and maintains rules that undermine the very value that the system is committed to preserving. Consequently, it is imperative that we not conflate courts with the rule of law. Conventional wisdom views courts as institutions designed to safeguard the rule of law. This is, of course, true. But the same conventional wisdom gives short shrift to the notion that courts might also undermine the rule of law. In this article, I show how, by creating, developing, and sustaining rules of law, courts can also do violence to the rule of law.