> ## Content Index > Fetch the complete content index at: https://www.europesblindspots.eu/llms.txt > Use this file to discover other available public pages before exploring further. # 02.Rule of Law - URL: https://www.europesblindspots.eu/rule-of-law/ - Published: 2026-09-03T17:31:04.000Z - Updated: 2026-09-03T19:39:08.000Z - Description: The Rule of Law is often mistaken for the background machinery of politics. In reality, it transforms the relationship between the person and power: rulers must give reasons, majorities must respect boundaries, and citizens can demand an answer from the state. - Author: Albert Stulens - Tags: The Architecture of Politics, Rule Of Law, Democracy, Constitutionalism, Human Rights, Europe ## The Invisible Architecture of Freedom *The political architecture that places law above power, protects the individual from arbitrariness, and requires every public authority to justify its actions.* # 1\. Definition At its core, the Rule of Law means that everyone—including governments, parliaments, police forces and courts—is subject to law. Public power may be exercised only through rules that are accessible, sufficiently clear and applied by independent institutions. No office, mandate or electoral victory places its holder above legal restraint.1 This makes the Rule of Law the opposite of arbitrary government. Political decisions cannot depend solely on who happens to be in power. They must rest on lawful authority, respect established procedures and remain open to review. The ideal is often summarized as government by laws rather than by the personal will of rulers. The concept does not promise that every law will be wise or just. Legal philosophers disagree over whether the Rule of Law is primarily a formal ideal -concerned with clarity, stability and procedure - or whether it also necessarily includes democracy, fundamental rights and human dignity. Modern European constitutionalism generally adopts the broader view: legality matters because it protects people against power.3 ## Rule of Law and rule by law The distinction between Rule of Law and rule by law is fundamental. The expressions sound similar, but they describe opposite relationships between law and political power. | **Question** | **Rule of Law** | **Rule by law** | | ---------------------- | --------------------------------------------------- | ---------------------------------------------- | | **Who is restrained?** | Citizens and public authorities | Primarily citizens and opponents | | **Purpose of law** | To organize and limit power while protecting rights | To implement, legitimize or preserve power | | **Equality** | No person or office is above the law | The ruling elite may be privileged in practice | | **Courts** | Independent and able to review government action | Subordinate to political authority | Authoritarian regimes may possess constitutions, courts and elaborate legal codes. What they lack is an independent legal order capable of saying no to those who govern. The decisive question is therefore not whether power uses law, but whether law can restrain power. # 2\. The word The vocabulary of the Rule of Law developed through several linguistic and constitutional traditions. Rule of Law, Rechtsstaat and État de droit overlap today, but their histories emphasize different aspects of the same ideal. ## Recht The German and Dutch word Recht is related to an old Germanic family of words meaning straight, right or correctly directed. A physical quality - something not bent or crooked - gradually acquired a moral meaning: what is right, fair or just. The same association survives in expressions such as “the right path” and “to do justice to” someone or something. ## Rule Rule entered English through Old French reule or riule, derived from the Latin regula. A regula was originally a straight piece of wood, a measuring rod or ruler. The physical instrument became a metaphor for a standard against which conduct could be measured. To rule was therefore not only to command, but also to apply a measure or principle. ## Law The English word law came through Old Norse lag or lög: something laid down, fixed or established. The word retains an institutional insight. Law is not merely an improvised command; it is a rule placed before a community and expected to endure beyond the immediate wishes of one person. ## State State derives through French état from the Latin status, meaning condition, position or standing. During the early modern period, especially through the influence of Machiavelli’s lo stato, it came to denote the enduring political organization of a territory and its institutions. Taken together, the words offer an architectural metaphor: a standard, something laid down, and an established political order. The Rechtsstaat is a state whose power is given form and direction by law. The Rule of Law asks whether the institutions that govern society can themselves be measured against rules that they do not control at will. # 3\. Historical origins The Rule of Law was not invented at a single moment. It emerged slowly from attempts to make rules visible, to subject rulers to higher standards, to professionalize legal judgment and, eventually, to protect every person against the state. Early legal orders were not constitutional states in the modern sense, but they contributed elements from which that ideal later developed. ## 1\. Law made visible: Ur-Nammu and Hammurabi Some of the earliest surviving written law codes come from Mesopotamia. The Code of Ur-Nammu, composed in Sumer around the twenty-first century BCE, sought to regulate punishment, property and social relations. Its prologue presents royal justice as protection for vulnerable people, including widows and orphans, against exploitation by the powerful. It also used financial compensation for several injuries rather than relying solely on physical retaliation.4 Several centuries later, Hammurabi of Babylon assembled a much larger collection of judgments and rules. The famous stele associated with his reign made royal justice durable and visible. Its provisions were unequal by modern standards: status, gender and social class affected both rights and punishments. Nor was Hammurabi himself subordinated to an independent court. Its contribution was therefore not the modern Rule of Law, but the idea that judgment should be connected to known and relatively stable rules rather than invented afresh in every case.5 ## 2\. Law above rulers: Ma’at, Greek thought and Aristotle Ancient Egypt developed a different conception. The pharaoh was expected to preserve Ma’at: truth, balance, order and justice. Although this was a religious and cosmic obligation rather than an enforceable constitution, it expressed an enduring political idea - that even supreme authority loses legitimacy when it governs through disorder and injustice. The Greek city-states added a more civic dimension. The principle of isonomia described equality among citizens under common laws, although citizenship excluded women, enslaved people and foreigners. In Athens, large citizen juries participated directly in adjudication. These courts did not eliminate corruption or faction, but they removed judgment from the exclusive control of a monarch or hereditary caste. Aristotle supplied the classic formulation: it is preferable for law to rule than for any one citizen to rule. Human beings, including good rulers, are moved by appetite, anger and partiality. Law offered the possibility - never the guarantee - of reasoned and general judgment. Yet Aristotle also recognized that laws require interpretation and that no text can anticipate every circumstance. The Rule of Law would always depend on both rules and the quality of the institutions applying them.6 ## 3\. Law as civic and institutional order: Rome Rome transformed law into a durable civic and professional institution. According to Roman tradition, the Twelve Tables of the fifth century BCE placed basic rules in public view and reduced the patrician elite’s monopoly over legal knowledge. Roman law nevertheless remained hierarchical: citizens, women, foreigners and enslaved people did not possess equal status. The Romans developed specialized legal roles, including magistrates, advocates and jurists who advised on the interpretation of law. They also refined principles that remain familiar today: no punishment without law, the burden of proof on the accuser and protection for the accused when reasonable doubt remains. Their greatest legacy was not a fully realized Rule of Law, but a legal vocabulary and institutional method capable of surviving changes of regime.7 That change of regime also revealed law’s political ambiguity. The Roman Republic dispersed authority among assemblies, magistrates and the Senate, even though it was far from a modern democracy. Under the Empire, law increasingly expressed imperial authority. The maxim quod principi placuit legis habet vigorem - what pleases the prince has the force of law - captures the movement toward rule by law. Imperial government remained highly legalistic, but the emperor was no longer effectively restrained by an independent legal order. In the sixth century CE, Emperor Justinian ordered the enormous inheritance of Roman law to be compiled in the Corpus Iuris Civilis. Its rediscovery in medieval Western Europe shaped university legal education and, much later, the civil-law codifications of continental Europe. Roman law provided an enduring architecture of legal concepts, but constitutionalism would require another step: the ruler himself had to become answerable to law. ## 4\. The king under law: Magna Carta Magna Carta was sealed at Runnymede in June 1215 after a political and military conflict between King John and rebellious barons. Archbishop Stephen Langton played an important role in the negotiations and formulation of the settlement. The charter was not a democratic constitution and most of its protections applied to a narrow part of medieval society. It was quickly annulled and subsequently reissued in altered forms. Its later constitutional meaning became far greater than its immediate success.8 ![The 1215 Magna Carta manuscript, written in dense medieval Latin script on faded parchment.](https://storage.ghost.io/c/f0/d7/f0d765c5-4f26-4496-b85d-fa791969d141/content/images/2026/09/Magna_Carta_-1215-_-_BL_Cotton_MS_Augustus_II_106.jpg) One of four surviving exemplifications of Magna Carta issued in 1215\. The charter did not establish modern democracy, but helped articulate the enduring principle that political authority is subject to law. **British Library, Cotton MS Augustus II 106\. CC0.* Its enduring importance lies in the principle that royal authority was not unlimited. Clause 39 declared that no free man could be imprisoned, dispossessed or outlawed except through lawful judgment or the law of the land. Clause 40 promised that justice would neither be sold, denied nor delayed. These provisions later became symbols of due process and access to justice, even though their original beneficiaries were not universal.10 Two other clauses reveal the institutional struggle beneath the language of rights. Clause 12 restricted certain forms of taxation without the common counsel of the realm, foreshadowing the principle that rulers cannot raise revenue without political consent. Clause 61 created a council of twenty-five barons empowered to compel the king’s compliance. This enforcement mechanism was exceptional, coercive and short-lived, but it exposed a permanent constitutional problem: a promise to obey the law is meaningless when no institution can enforce it. Over subsequent centuries, English lawyers and parliamentarians reinterpreted Magna Carta as evidence that government was subject to an inherited legal order. In the seventeenth century, struggles between Crown and Parliament connected taxation, personal liberty and lawful government. By the nineteenth century, Albert Venn Dicey gave the English Rule of Law its influential modern formulation: supremacy of regular law, equality before ordinary courts and the protection of constitutional rights through judicial decisions. ## 5\. Constitutional government: Locke and Montesquieu The Enlightenment converted inherited restraints into a theory of legitimate government. John Locke argued that political authority exists to protect natural rights and loses legitimacy when it becomes tyrannical. Montesquieu identified concentrated power as the central danger: liberty requires institutions capable of checking one another. Their fuller philosophies belong in the chapter on major thinkers; historically, their decisive contribution was to make limited government a principle of political design rather than an accumulation of privileges and precedents.11 On the European continent, the concept developed through the idea of the Rechtsstaat. Kant described a republican legal order in which each person’s freedom could coexist with the freedom of everyone under universal law. Johann Wilhelm Petersen, writing as Placidus, used the term Rechtsstaat at the end of the eighteenth century. Robert von Mohl later gave it a more systematic meaning by contrasting a state that protects liberty through law with the discretionary Polizeistaat. The continental tradition initially emphasized a state binding itself through public law; the English tradition emphasized courts protecting individuals through common law. Modern constitutional systems increasingly combine both approaches. ## 6\. From legality to dignity The twentieth century exposed the limits of legality understood as procedure alone. Fascist and totalitarian regimes did not always govern without law. They enacted discriminatory statutes, manipulated courts and used administrative rules to organize persecution. A measure could possess an official legal form while remaining radically incompatible with justice, equality and human dignity. Law had become an instrument of power rather than a restraint upon it. ![The words “Die Würde des Menschen ist unantastbar” mounted on the exterior wall of the Regional Court in Braunschweig.](https://storage.ghost.io/c/f0/d7/f0d765c5-4f26-4496-b85d-fa791969d141/content/images/2026/09/Die-W--rde-des-Menschen.png) Human dignity shall be inviolable. Article 1 of the German Basic Law, displayed at the Regional Court in Braunschweig on the initiative of Fritz Bauer. Postwar constitutionalism therefore linked the Rule of Law more explicitly to fundamental rights. Germany’s Basic Law of 1949 begins not with the sovereignty of the state but with the dignity of the person: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” It then binds the legislature, executive and judiciary to fundamental rights as directly applicable law. The European Convention on Human Rights, constitutional courts and the later legal order of the European Union developed the same lesson in different forms. Public power requires a legal basis, but legality is not enough when the law destroys the conditions of equal citizenship. The modern European Rule of Law therefore joins procedure to rights, institutional restraint to human dignity, and national constitutional government to supranational review.16 # 4\. Core principles Different constitutional traditions disagree about the precise boundaries of the Rule of Law, but they converge around three functions: limiting public power, protecting rights and ensuring that disputes are resolved through independent institutions rather than force or political favour. **To limit power:** no ruler or public authority may act outside lawful authority. **To protect rights:** individuals must possess enforceable protections against abuse. **To ensure justice:** disputes must be heard by independent and impartial courts applying law fairly. ## 1\. Legality Every exercise of public authority must have a legal basis. Laws must be adopted through legitimate procedures, made public and applied in good faith. No person may be punished for conduct that was not criminal when it occurred: nullum crimen, nulla poena sine lege. Legality prevents government from inventing powers or offences to target a particular person after the fact. ## 2\. Separation of powers and institutional checks The legislative, executive and judicial functions should not be concentrated in one person or institution. Parliament makes general laws and scrutinizes government; the executive administers and enforces those laws; independent courts resolve disputes and review whether public authorities acted lawfully. Constitutional systems divide these functions in different ways, but all require institutions capable of checking abuses by the others. ## 3\. Equality before the law Legal rules must apply without arbitrary privilege or discrimination. Wealth, office, origin and political influence may not place a person beyond ordinary legal accountability. Equality does not always require identical treatment: law may recognize relevant differences, but it must be able to justify them through general and publicly defensible reasons. ## 4\. Accountability and the prevention of arbitrariness Public officials must answer for the powers entrusted to them. Courts, parliaments, audit institutions, ombudsmen, independent media and civil society provide different forms of oversight. Discretion is sometimes necessary, but it must remain bounded by law, exercised for a proper purpose and open to review. ## 5\. Legal certainty People must be able to discover what the law requires and reasonably foresee the legal consequences of their actions. Rules should be sufficiently clear, stable and consistent. Retroactive laws, contradictory obligations and sudden changes designed to disadvantage particular persons undermine the ability to live as an autonomous citizen. ## 6\. Access to justice Rights have little value when they cannot be enforced. Everyone must have practical access to an independent and impartial tribunal within a reasonable time. Proceedings must be fair, judicial decisions must provide reasons, and effective remedies must exist when public authorities violate the law. Excessive cost, delay or procedural complexity can deny justice as effectively as a closed courthouse. ## 7\. Judicial independence Judges must decide cases without instructions, intimidation or retaliation from government, political parties, wealthy litigants or popular movements. Judicial independence does not mean freedom from accountability: judgments must be reasoned, open to appeal where appropriate and subject to ethical standards. It means that no minister or political leader may dictate the outcome of a case. Security of tenure and transparent appointment procedures help protect that independence, although their institutional form varies between countries. ## 8\. Fundamental rights and human dignity Modern constitutionalism generally treats fundamental rights as more than political promises. Freedoms of expression, religion, association and privacy protect a personal sphere against government intrusion; equality and non-discrimination safeguard equal citizenship; social and economic rights can require public action to make dignity effective. The exact relationship between rights and the Rule of Law remains debated, but European constitutional traditions increasingly understand them as mutually dependent. Law limits power so that every person can appear before the state not as a subject asking for favour, but as a rights-bearing citizen. | **Principle** | **Meaning** | | --------------------------- | ------------------------------------ | | **Legality** | Government acts based on law | | **Equality before the law** | No one is above the law | | **Accountability** | Authorities answer for their actions | | **Legal certainty** | Predictable and stable laws | | **Separation of powers** | Power divided among branches | | **Access to justice** | Everyone can seek redress | | **Human rights protection** | Law serves liberty and dignity | # 5\. Major thinkers The Rule of Law was not created by a single philosopher. It emerged through a long argument about where law comes from, what makes government legitimate and whether legality can be separated from justice. Its development can be understood in three movements: limiting power, constructing the legal state, and rebuilding legality after the catastrophes of the twentieth century. ## Limiting power ### Aristotle (384–322 BCE): law above passion Aristotle supplied one of the earliest philosophical statements of government under law. Human rulers, however wise, remain vulnerable to anger, appetite and partiality. Law offers a more general and enduring form of reason. In the Politics, he therefore argues that it is preferable for law to rule than for any individual citizen to rule. He did not imagine an impersonal legal machine: laws still require officials, interpretation and practical judgment. His essential contribution was to reverse the ordinary hierarchy. The ruler should be the guardian of law, not its source without limit. *Key work: Politics.* ### John Locke (1632–1704): government as a trust Locke grounded limited government in natural rights. People possess rights to life, liberty and property before political authority is created. Government arises through consent because a common authority can protect those rights more reliably than individuals acting alone. Political power is therefore fiduciary: it is held in trust for the governed. When rulers systematically attack the rights they were established to protect, they break that trust and may forfeit their legitimacy. Locke’s argument helped connect the Rule of Law to constitutional government, representative institutions and a right of resistance against tyranny. *Key work: Two Treatises of Government (1689).* ### Montesquieu (1689–1755): power must restrain power Montesquieu understood liberty as security against arbitrary power, not the ability to do whatever one wishes. Because anyone who possesses power may be tempted to abuse it, constitutional design must prevent legislative, executive and judicial authority from being concentrated in the same hands. His separation of powers was not a rigid diagram but a system of counterweights: institutions, courts, representative bodies and local authorities capable of resisting domination. The Spirit of the Laws also insists that institutions develop within histories, customs and social conditions. Good constitutionalism must limit power without pretending that one institutional design can simply be exported everywhere unchanged. *Key work: The Spirit of the Laws (1748).* ## Building the legal state ### Immanuel Kant (1724–1804): equal freedom under universal law Kant gave philosophical depth to the continental ideal later associated with the Rechtsstaat. A rightful political order must enable the freedom of each person to coexist with the freedom of everyone under a universal law. Citizens are not objects to be administered for their own happiness; they are autonomous persons entitled to equal external freedom. Government may enforce a common legal order, but it may not treat people merely as instruments. Kant did not coin the term Rechtsstaat, yet his republican theory supplied its moral architecture: public law, legal equality and institutions through which freedom becomes compatible rather than mutually destructive. *Key work: The Metaphysics of Morals (1797).* ### Robert von Mohl (1799–1875): from Polizeistaat to Rechtsstaat Von Mohl gave the Rechtsstaat a systematic place in German constitutional and administrative thought. He contrasted it with the Polizeistaat, in which government claimed broad discretionary authority to manage society in the name of order and welfare. In a Rechtsstaat, administration must possess a legal basis, individual freedom must be protected, and citizens must have remedies against official abuse. Von Mohl did not invent the word - the term appeared earlier - but his work helped give it its durable modern meaning. The state remained important, but its authority was to be structured, public and legally answerable. *Key work: Die deutsche Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates (1832–1834).* ### A. V. Dicey (1835–1922): equality before ordinary law Dicey offered the classic English formulation. The Rule of Law required the supremacy of regular law over arbitrary discretion, equality of officials and citizens before ordinary courts, and the protection of constitutional rights through judicial decisions. His account reflected the uncodified British constitution and his confidence in common-law courts. It was also historically limited: modern administrative states and constitutional courts developed in ways his model did not fully anticipate. Nevertheless, Dicey made a decisive principle vivid - public office does not create a separate legal status above the citizen. *Key work: Introduction to the Study of the Law of the Constitution (1885).* ## After legal catastrophe ### Lon L. Fuller (1902–1978): the internal morality of law Fuller asked what distinguishes law from a series of arbitrary commands. Through the parable of the incompetent King Rex, he identified eight requirements of legality: rules should be general, public, prospective, intelligible, consistent, possible to obey, reasonably stable, and administered in accordance with their announced meaning. These principles do not guarantee morally good legislation, but Fuller believed that they express an internal morality of law because they treat citizens as responsible agents capable of understanding and following rules. A regime that governs through secrecy, contradiction or systematic disregard of its own laws is not merely unjust; it is failing at the activity of lawmaking itself. *Key work: The Morality of Law (1964).* ### Joseph Raz (1939–2022): legality is not justice Raz sharpened the concept by resisting the tendency to make the Rule of Law synonymous with every political good. Clear, stable and prospective laws allow people to plan their lives and reduce arbitrary power, but those formal virtues do not ensure democracy or justice. Raz compared the Rule of Law to the sharpness of a knife: it is a virtue that helps a legal system function as law, although the system may still pursue wicked purposes. His position forces an important distinction. We should defend legality without pretending that legality alone settles the moral quality of government. *Key work: The Authority of Law (1979), especially “The Rule of Law and Its Virtue.”* ### Hannah Arendt (1906–1975): the right to have rights Arendt examined what happens when people are expelled not only from a country but from a political community capable of guaranteeing rights. The stateless discovered that abstract human rights offered little protection when no institution recognized them as persons entitled to make claims. Her “right to have rights” is therefore the right to belong to an organized political world in which speech, judgment and legal standing are possible. Arendt also compared law to the walls of a city: boundaries that create a common public space. Totalitarianism destroys that space by replacing stable law with ideological movement and administrative terror. *Key work: The Origins of Totalitarianism (1951).* ### Neil MacCormick (1941–2009): law as reason-giving practice MacCormick connected institutions, interpretation and public justification. Laws inevitably contain ambiguity, and judges cannot decide difficult cases through mechanical reading alone. Yet interpretation need not become personal preference. Courts must offer reasons that fit existing law, remain coherent with constitutional principles and can be criticized in public. This account is particularly valuable in plural Europe, where authority is shared among national, European and international institutions. The Rule of Law survives not because every dispute has an obvious answer, but because power must explain itself through disciplined and contestable reasoning.21 *Key works: Legal Reasoning and Legal Theory (1978); Rhetoric and the Rule of Law (2005).* ## Evolution at a glance | **Thinker** | **Principal contribution** | | --------------- | -------------------------------------------------------------------- | | **Aristotle** | The ruler should guard law rather than stand above it. | | **Locke** | Government is a trust created to protect pre-political rights. | | **Montesquieu** | Liberty requires institutions capable of checking one another. | | **Kant** | A rightful state reconciles the equal freedom of every person. | | **Von Mohl** | Administration must be legally bound and answerable to citizens. | | **Dicey** | Officials and citizens are subject to ordinary law and courts. | | **Fuller** | Legality has procedural principles that respect human agency. | | **Raz** | The Rule of Law is valuable but does not guarantee justice. | | **Arendt** | Rights require membership in a political and legal community. | | **MacCormick** | Legal authority depends on coherent and publicly defensible reasons. | # 6\. Different traditions of the Rule of Law Rule of Law, Rechtsstaat and État de droit are often treated as translations. Their modern meanings overlap considerably, but each emerged from a different institutional history. The distinctions are best understood as traditions of emphasis rather than sealed legal worlds. Contemporary constitutional systems borrow from one another, and no country conforms perfectly to a single model. ## The British Rule of Law The British tradition developed through conflicts among Crown, Parliament and courts rather than from a single written constitutional design. It emphasizes inherited common law, parliamentary government, ordinary courts and the principle that officials possess no general exemption from the law. Britain’s constitution is uncodified rather than unwritten: statutes, judicial decisions, conventions and institutional practices together form the constitutional order. Judges develop the law through precedent and interpretation, but Parliament remains the central legislative authority. Their role is therefore important without being absolute. ## The German Rechtsstaat The German tradition begins more explicitly from the state and asks how public authority can be made lawful. Administrative action requires a legal basis; powers must be defined and reviewable; and courts must provide remedies against government. After 1945, the Basic Law transformed this primarily legal-administrative ideal by placing human dignity, fundamental rights and constitutional review at its centre. The Rechtsstaat became both formal and substantive: government must act through law, but law itself is bound by a constitutional order that ordinary majorities cannot freely discard. ## The French État de droit The French tradition grew from revolutionary legality, national sovereignty and a historically strong conception of the state. For a long time, parliamentary legislation was treated as the principal expression of the general will, while specialized administrative courts reviewed government action. During the twentieth century, constitutional review and rights protection became much more important. The État de droit now describes a state in which every public authority, including Parliament, is subject to higher legal norms and judicial control. ## American constitutionalism The United States combined English legal inheritance with a codified and supreme Constitution. Popular sovereignty authorizes government, but constitutional rules divide that power among Congress, the President and the courts. Federalism adds a second division between national and state authority. Judicial review allows courts to refuse effect to legislation or executive action incompatible with the Constitution, while the Bill of Rights protects individuals and minorities against government. The model is powerful but contested: disputes over judicial interpretation, presidential authority and democratic legitimacy reveal that a written constitution does not interpret or defend itself. ## The postwar European order17 After 1945, European constitutionalism increasingly joined legality to democracy and human rights. National constitutional courts, the European Convention on Human Rights and the legal order of the European Union created overlapping forms of review. Article 2 of the Treaty on European Union places the Rule of Law alongside human dignity, freedom, democracy, equality and human rights. This produces a plural legal space: public power is limited not only within the state but also through commitments shared with other European states. The arrangement can generate conflict over sovereignty, yet its purpose is precisely to prevent any single centre of authority from becoming final and unchecked. ## Thin and thick conceptions A thin conception concentrates on how law is made and applied: clarity, publicity, stability, generality, independent courts and protection from arbitrariness. A thick conception adds requirements concerning democracy, fundamental rights, equality and sometimes social justice. The thin approach preserves conceptual precision and reminds us that an unjust regime can still possess some virtues of legality. The thick approach responds that modern constitutional government cannot call systematic persecution or exclusion compatible with the Rule of Law merely because it is efficiently codified. The disagreement should remain visible. It is not a defect in the concept but one of its central intellectual tensions. # 7\. The promise - and the price The promise of the Rule of Law is protection from arbitrary power. The citizen does not depend solely on the goodwill of a minister, police officer, administrator or majority. Decisions require authority; accusations require evidence; punishment requires procedure; and violations can be challenged before an independent institution. Law gives the individual a standing from which to address the state as an equal bearer of rights rather than as a subject asking for favour. That promise has a price. Governments must sometimes accept judgments they consider inconvenient. Majorities must recognize limits they could numerically overcome. Police and prosecutors must respect procedure when public anger demands immediate punishment. Citizens must accept that suspicion is not proof and that opponents possess the same rights they claim for themselves. Courts must explain their decisions, tolerate criticism and remain conscious of the boundaries of adjudication. ## The appeal to politicians: restraint No constitutional text can anticipate every possible abuse. Political actors therefore carry responsibilities that extend beyond exploiting whatever is technically legal. They must respect the spirit of institutional boundaries, avoid manipulating appointment procedures for partisan control, and implement judgments even when doing so imposes political cost. Democracy depends upon winners who refuse to convert a temporary majority into permanent domination and losers who continue to work through lawful institutions. Restraint is not weakness; it is the discipline that allows power to change hands peacefully. ## The appeal to citizens: civic courage Citizens are not merely beneficiaries of the Rule of Law. They sustain it by defending equal rights, distinguishing political disagreement from illegitimacy and resisting attempts to place disliked groups outside ordinary protection. Civic courage may mean supporting an unpopular judgment, insisting upon due process for an opponent or refusing the comfort of indifference when another person’s rights are attacked. Arendt’s work raises the standard further: the political world survives only when people continue to think, judge and accept responsibility for what is done in their name. ## The appeal to civil society Journalists, universities, trade unions, professional associations, religious communities and civic organizations form part of the constitutional ecology. They investigate power, preserve knowledge and give citizens ways to organize beyond government. Their responsibility is not blind reverence for institutions, but criticism grounded in evidence and a commitment to the democratic space that makes criticism possible. Sensationalism can corrode trust; silence can protect abuse. Independent institutions must navigate between the two. The German jurist Ernst-Wolfgang Böckenförde captured the vulnerability in a famous paradox: the liberal secular state lives by conditions it cannot itself guarantee. Law can require a driver to stop at a red light, but it cannot easily compel honesty, tolerance, respect for truth or recognition of another person’s dignity. When those habits disappear, statutes become dead letters and court buildings empty shells.22 The Rule of Law is therefore less like a fortress than a carefully cultivated garden. High walls alone cannot preserve it. It requires patient maintenance, attention to neglected corners and restraint toward fragile growth. When institutions are starved, public debate becomes punitive and rules are maintained only when convenient, arbitrariness returns quickly. The Rule of Law makes government slower in some moments because it makes oppression harder in every moment. # 8\. Common misconceptions The Rule of Law is frequently invoked but easily misunderstood. The following myths obscure both its purpose and its limitations. ## Myth 1: The Rule of Law means law and order A society may possess strict policing and extensive legislation while remaining profoundly arbitrary. The Rule of Law does not begin by demanding obedience from citizens; it begins by demanding lawful authority from government. Police, ministers and public agencies must obey rules, provide reasons and remain subject to review. Its aim is not order at any price, but order compatible with freedom and equal legal protection. ## Myth 2: Every legally enacted measure satisfies the Rule of Law A parliamentary vote can give a measure formal validity without making it compatible with constitutional government. Apartheid and the racial laws of Nazi Germany demonstrate how legal forms can organize oppression. Thin theories rightly preserve a distinction between legality and justice, but modern European constitutionalism also binds legislation to rights, equality and human dignity. The existence of a statute is the beginning of the legal question, not its end. ## Myth 3: Judges who limit elected governments are undemocratic Constitutional review can frustrate a present majority, but democracy is more than the immediate preference of 51 percent. Constitutions establish longer-term commitments concerning rights, procedures and the peaceful distribution of power. Courts protect those commitments when they review government action. Judges can overreach and must provide reasons open to criticism; nevertheless, enforcing constitutional boundaries is not inherently opposed to democracy. It helps distinguish limited government from elective domination. ## Myth 4: Elections alone guarantee the Rule of Law Elections determine who may exercise political authority. They do not determine how that authority may be used. An elected government can weaken courts, manipulate electoral administration, capture public media and direct public resources toward loyal networks. Once opposition parties can no longer compete fairly and citizens cannot obtain independent legal protection, elections may remain while constitutional democracy disappears. The Rule of Law concerns the conditions under which political choice remains meaningful. ## Myth 5: The Rule of Law prevents decisive government Constitutions permit governments to act during war, natural disasters, pandemics and other emergencies. What they reject is emergency power without legal authorization, proportionality, time limits or independent scrutiny. Speed does not require arbitrariness. Indeed, clear emergency rules can make action more legitimate and effective because officials and citizens understand the boundaries of exceptional authority. The Rule of Law does not abolish urgency; it prevents urgency from becoming a permanent political method. ## Myth 6: Institutions can survive without constitutional habits A court building, parliament or constitutional text can remain in place after its protective function has been hollowed out. Institutions depend on people willing to respect adverse decisions, defend professional independence and object when legal powers are used selectively. This culture is neither automatic nor irreversible. Once politicians treat every limit as sabotage and citizens defend procedure only for their own side, formal institutions can become instruments of the very arbitrariness they were designed to prevent. # 9\. Why it matters today Contemporary erosion rarely begins with the formal abolition of a constitution. It proceeds through appointments, administrative pressure, selective enforcement, emergency decrees, financial dependence and attacks on those who investigate power. The European Commission examines four domains in its annual Rule of Law cycle: justice systems, anti-corruption frameworks, media pluralism and freedom, and institutional checks and balances. Together they show that the Rule of Law is an ecosystem rather than a single court or constitutional clause. ## Justice systems Courts require more than formal independence. Appointment procedures, disciplinary rules, case allocation, resources and security of tenure can all influence whether judges are able to decide without pressure. Hungary illustrates how changes to judicial governance, appointments and administrative authority can weaken effective independence even while courts continue to operate. Institutional credibility cannot be restored through a single legislative act; it must be rebuilt through repeated practice. ## Anti-corruption frameworks Corruption converts public authority into private advantage and makes equality before law fictitious. Effective systems require transparent procurement, credible asset declarations, rules on lobbying and political finance, independent investigators and prosecutors able to pursue high-level cases. The recurring European dispute over Hungary demonstrates that formal anti-corruption bodies are insufficient when enforcement cannot convincingly reach those closest to political power. ## Media pluralism and freedom Citizens cannot hold power accountable without access to independent information. Media capture may operate through ownership concentration, selective state advertising, politicized regulators, restrictions on public information or intimidation of journalists rather than direct censorship. Hungary demonstrates how a press can remain formally free while being weakened economically and administratively. Legal guarantees must therefore be tested against the real distribution of resources, access and regulatory power. ## Institutional checks and balances Emergency powers, surveillance, regulatory pressure and restrictions on civil society reveal how government can bypass ordinary accountability. Prolonged emergency rule, opaque surveillance and legal or financial pressure on civic organizations can normalize exceptional authority without formally abolishing constitutional institutions. The Hungarian case demonstrates how safeguards may be dismantled gradually - and why democratic restoration, when it begins, is necessarily slower than erosion. ## The digital state Algorithms increasingly influence policing, fraud detection, migration, taxation and access to public benefits. Their apparent neutrality can conceal biased data, opaque assumptions or rules that no citizen can meaningfully challenge. The central Rule of Law question is not whether government may use technology, but whether a person can know that an automated system affected a decision, understand the relevant reasons and obtain effective human and judicial review. European AI regulation establishes important safeguards, but legality must remain intelligible at the level of the individual case. ## When every institution fails: the Dutch childcare-benefits scandal The Dutch childcare-benefits scandal demonstrated that constitutional failure need not begin with an openly authoritarian leader. Severe legislation, discriminatory risk selection, inflexible administration, inadequate parliamentary scrutiny and years of deferential judicial review combined to devastate families. Each institution operated through procedures, yet the system as a whole ceased to see the citizen. The case is a warning against equating legality with bureaucratic correctness: proportionality, reason-giving and an effective remedy are indispensable when administrative power becomes overwhelming.25 ## Organized crime and democratic security The Rule of Law is also threatened when criminal organizations intimidate lawyers, judges, witnesses and journalists. Governments must protect the people and institutions on which justice depends. At the same time, public fear can generate demands for unchecked surveillance, weakened defence rights or punishment without adequate procedure. Democratic security is therefore a double obligation: the state must act effectively against coercive private power without adopting the arbitrary methods it is trying to defeat. Across these challenges, the same question returns: what happens when power no longer accepts limits? The answer is seldom an immediate constitutional collapse. More often, citizens gradually lose the ability to obtain reasons, challenge decisions and rely on institutions that apply common rules. The Rule of Law matters today because it determines whether political conflict remains a contest among equal citizens or becomes a struggle over who may place whom outside protection. ![A solitary old tree with bare spreading branches standing beneath a broad, pale winter sky.](https://storage.ghost.io/c/f0/d7/f0d765c5-4f26-4496-b85d-fa791969d141/content/images/2026/09/Tree.JPG) The institutions of the Rule of Law may appear permanent, but they remain living structures: rooted in history, exposed to the elements and dependent upon continued care. **Photograph by Albert Stulens* # 10\. Conclusion: The Invisible Tree For years, we barely noticed it. We took it for granted. It had been there for so long - a quiet presence that did what it was supposed to do without complaint - so why pay it much attention? Its surroundings received far more scrutiny. We worried that there were too many wildflowers, that the grass was growing too long or had lost its colour. Every so often, the mower was brought out and new products were applied to make the garden appear ordered again. Then the light changes. We hear a soft groan that we cannot immediately place. We look upwards and discover that the robust tree, deeply rooted in history - which over the centuries we have come to call the Rule of Law - has begun to show bare patches. Its trunk no longer has its former strength. Here and there, roots anchored in the mud of Runnymede have become exposed, and the bark that once appeared impenetrable bears signs of fatigue. The invisible tree beneath which we have sheltered in freedom, day after day, turns out to be more vulnerable than we imagined. The quiet presence of laws, rights and institutions suddenly demands our attention. Beneath their apparent neutrality lies a living structure that requires maintenance, appreciation and care. We have long gathered its fruits: personal freedom, equal rights, protection from arbitrary power and the assurance that even government must provide reasons for what it does. We have received far more from this tree than most of us have ever been asked to invest in it. It is therefore time to accept our responsibility - to recognize our moral mandate to protect the constitutional order that protects us. That means caring not only for what is visible but also for what lies beneath the surface. Roots need healthy soil. Courts require resources and independence. Rights require practical access. Public institutions need people willing to defend their integrity. When savings must be found, the gardener may appear expendable because maintenance produces no immediate return. But neglect accumulated quietly can inflict damage that is both profound and difficult to reverse. Only through sustained attention can the Rule of Law continue to bear fruit. It must be cultivated by ensuring that everyone - not only the wealthy, powerful or well connected - can exercise their rights. It also requires careful pruning, so that branches of government do not appropriate more light, space and authority than the constitutional order grants them. An illiberal and populist wind is now sweeping across the plains. It hardens political language, accuses the gardener of partiality and whispers that constitutional limits make government too slow. It tells us that independent courts obstruct the popular will, that rights protect the wrong people and that restraint is weakness. **We will not withstand that wind by striking an axe into the roots.** Resilience comes from a shared foundation: from defending fundamental rights together, including when they protect people with whom we disagree. It requires empathy rather than apathy, and trust that extends both horizontally - between citizens - and vertically, between citizens and institutions. A federalist understanding strengthens this constitutional ecology. The tree does not survive through one branch dominating all the others. Its strength comes from shared roots, dispersed growth and the balance among its many branches. Unity does not require uniformity, and authority need not mean domination. Each level and institution carries part of the weight; each also prevents another from claiming the whole canopy. The Rule of Law is not a self-sustaining monument. It is a living achievement. It survives through civic courage, institutional restraint and the willingness to maintain principles whose benefits are often most visible only after they have disappeared. Let this eulogy, then, not become an obituary. Let it become a promise of radical constitutionalism - radical in the original sense of the word: returning to the roots. A promise to care as much for the soil as for the canopy. A promise to weather the storm together. And a promise never to forget that the tree can shelter our society only for as long as we are willing to protect it. # 11\. Further reading Tom Bingham, The Rule of Law (2010). Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (2004). Lon L. Fuller, The Morality of Law, revised edition (1969). Joseph Raz, “The Rule of Law and Its Virtue,” in The Authority of Law (1979). Martin Krygier, The Rule of Law: Past, Presents, and Two Possible Futures (2023). Venice Commission, Updated Rule of Law Checklist (2025). Basic Law for the Federal Republic of Germany, especially Articles 1 and 20. # 12\. Source notes 1\. For a widely used institutional definition, see United Nations, “What is the Rule of Law?” https://www.un.org/ruleoflaw/what-is-the-rule-of-law/ 2\. Venice Commission, Updated Rule of Law Checklist, CDL-AD(2025)002\. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2025)002-e 3\. On the distinction between formal and substantive conceptions, see Brian Z. Tamanaha, On the Rule of Law (2004), and Joseph Raz, “The Rule of Law and Its Virtue” (1977/1979). 4\. The surviving laws of Ur-Nammu are fragmentary; descriptions of a complete modern “code” should therefore be treated cautiously. See Martha T. Roth, Law Collections from Mesopotamia and Asia Minor, 2nd ed. (1997). 5\. For Hammurabi’s laws and prologue, see Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (1997). 6\. Aristotle, Politics, Book III, especially 1287a: the preference that law, rather than an individual citizen, should rule. 7\. On Roman legal maxims and institutions, see Justinian, Digest, including D.1.4.1 and D.22.3.2. 8\. UK Parliament, “Magna Carta.” https://www.parliament.uk/magnacarta/ 9\. British Library, Magna Carta 1215, Cotton MS Augustus II 106\. https://commons.wikimedia.org/wiki/File:Magna\_Carta\_(1215)\_-\_BL\_Cotton\_MS\_Augustus\_II\_106.jpg 10\. Magna Carta, clauses 12, 39, 40 and 61\. The 1215 settlement was annulled shortly after sealing and reissued in altered form. 11\. John Locke, Second Treatise of Government (1689), especially chapters IX, XI and XIX. 12\. Montesquieu, The Spirit of the Laws (1748), Book XI, chapter 6. 13\. Immanuel Kant, The Metaphysics of Morals (1797), Doctrine of Right. 14\. A. V. Dicey, Introduction to the Study of the Law of the Constitution (1885), especially the account of the supremacy of regular law and equality before ordinary courts. 15\. Basic Law for the Federal Republic of Germany, Articles 1 and 20\. https://www.gesetze-im-internet.de/englisch\_gg/ 16\. European Convention on Human Rights. https://www.echr.coe.int/documents/d/echr/convention\_eng 17\. Treaty on European Union, Article 2\. https://eur-lex.europa.eu/eli/treaty/teu\_2012/art\_2/oj/eng 18\. Lon L. Fuller, The Morality of Law (1964; revised ed. 1969), especially the eight principles of legality. 19\. Joseph Raz, “The Rule of Law and Its Virtue,” Law Quarterly Review 93 (1977), later collected in The Authority of Law (1979). 20\. Hannah Arendt, The Origins of Totalitarianism (1951), especially the discussion of statelessness and the “right to have rights.” 21\. Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (2005). 22\. Ernst-Wolfgang Böckenförde’s formulation concerning the conditions the liberal secular state cannot itself guarantee appears in “The Rise of the State as a Process of Secularization” (1967). 23\. European Commission, annual Rule of Law cycle and country chapters. https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/annual-rule-law-cycle\_en 24\. Regulation (EU) 2024/1689, the Artificial Intelligence Act. https://eur-lex.europa.eu/eli/reg/2024/1689/oj/eng 25\. On the Dutch childcare-benefits scandal, see the parliamentary inquiry report Blind voor mens en recht (2024) and the earlier report Ongekend onrecht (2020). 26\. For contemporary standards concerning judicial independence, corruption, media pluralism and checks and balances, see the European Commission’s annual reports and the Venice Commission checklist cited above.