Sienho Yee, Towards an International Law of Co-progressiveness (2004), 41-58
3 (pp. 41-58)
The Perfect Rule of Law*
Few slogans sound as thunderous as that of the rule of law. Few slogans have attracted as much attention. Still, I propose to add some more speculations to the mountain of existing literature on the topic, and to do so with the frank admission that I have not yet read all of the works on point. Nor can I, because of the sheer volume of them. So my views expressed herein are necessarily somewhat “one-sided”. Of course I have tried my best to be fair, and to present glimpses of some perhaps new ideas that probably should be taken as a point of view, although I hope they happen to be good or even correct.
What is so interesting about the rule of law is that
although the concept is “elusive”, people from around the world all think they
know what it means. People from all
corners of the globe use the phrase without feeling the need to add any
explanation. For example, the rule of
law is enshrined in the preamble of the European Convention on Human Rights and
in Article 5 of the Constitution of the People’s Republic of
I will begin my inquiry by describing and critiquing three commonly-found, but incomplete (in my view) formulations of the idea of the rule of law: (1) the rule of law as a shield against governmental authority (the Dicey view); (2) the rule of law as the rule of higher and just law; and (3) the rule of law as the rule of rules or the law of rules. I will then make my own attempts (more or less my own, but based on the raw materials of others) at giving more “complete” accounts of the concept by presenting: (1) two formulations of the imperfect rule of law—the coercive rule of law and the extra-legal rule of law—and (2) what I consider to be the perfect rule of law—the rule of law as law serving as the ultimate reason for voluntary action. The central tenets of each view are presented, critiqued (to some extent anyway), and then applied to the international circumstances.
At the outset, it is of use for us to first keep in mind the distinction between the “rule of law” and the “rules of law”: the former refers to the general state of affairs or legality where law plays a certain role to be discussed in these pages; the latter refers to the particular or individual rules or norms prescribing certain concrete courses of conduct. The formulations of the rule of law vary according to the expectations that one may have for the role that law plays in society.
In these pages I have attempted to sketch and critique the different formulations of the rule of law. The “perfect rule of law” formulation states that law is complied with simply because it is law, serving as the ultimate reason for voluntary action. This formulation takes better account of the need to give meaning to both the word “rule” and the word “law” in the phrase “the rule of law”. Admittedly such a formulation at present only describes an ideal state of affairs that we can only strive for, both in a national society and in international society.
(For full text, see Sienho Yee, Towards an International Law of Co-progressiveness (2004))
(the idea of the perfect rule of law; the concept of the rule of law; the idea of the rule of law)
* This piece was written for this collection. I am most grateful to Andreas Paulus, Pierre Schlag and Ahmed White for comments. Needless to say, they may not share my views and all responsibility is mine alone.