The concept of the rule of law is no new coin. It has long been the stuff of legal cliché, but also of extensive conceptual analysis and scholarly debate. The concept has a strong presence in legal theory and in traditions and branches of political theory. It has been less noticed or analysed by social theorists, however, which is odd. That neglect is unfortunate, for some of the central questions about the rule of law are sociological ones. So my suggestion is that we would do well to explore a hardly existent sociology, the sociology of the rule of law.
I provide nothing like that here, only some reasons to seek it. The argument is briefly this. The proper way to approach the rule of law is not to offer, as lawyers typically do, a list of characteristics of laws and legal institutions supposedly necessary, if not sufficient, for the rule of law to exist; let me call that the anatomical approach. Rather, one should begin with teleology and end with sociology. That is, I suggest we start by asking what we might want the rule of law for, by which I mean not external ends that it might serve, such as economic growth or democracy, but something like its telos, the point of the enterprise, goals internal to, immanent in the concept. Only then should we move to ask what sorts of things need to happen for us to achieve such a state of affairs, and only then move to ask what we need in order to get it. That third question, the bottom line, as it were, will of course involve legal institutions but it cannot be answered without looking beyond them to the societies in which they function, the ways they function there, and what else happens there which interacts with and affects the sway of law. For the rule of law to exist, still more to flourish and be secure, many things beside the law matter, and since societies differ in many ways, so will those things.
Public Law and Legal Theory
Date of this Version
Martin Krygier, "The Rule of Law: Legality, Teleology, Sociology" (October 2007). University of New South Wales Faculty of Law Research Series. Working Paper 65.