Abstract
Across the globe, residents of many democracies worry that their public officials threaten the rule of law. But what, precisely, does that mean? Much of the literature on what the rule of law requires focuses on what it demands when government interacts with private parties. This article examines what I call the public rule of law, asking what the rule of law has to say about how public power is organized and exercised.
In doing so, I consider four approaches to the rule of law in a public law context. First, a rule of law problem could arise from an unlawful power grab, when a government actor seeks to exercise authority beyond what the law allows. Second, a rule of law problem could arise from a government actor's attitude of indifference to legal restraints on their power. Third, a rule of law problem could exist when a legal actor, such as a judge or prosecutor, proceeds based on wrongful reasons, which is to say that they possess lawful authority but exercise that authority for a reason that either positive law or norms of political morality prohibit. Fourth, a rule of law problem could result not from officials' actions but rather from constitutional structure, namely a lack of sufficient checks on public power.
Having examined what the rule of law could mean in a public law context, the article then asks whether it is a useful concept. The rule of law is useful conceptually, in that it captures a set of values that are both important and distinctive. A case study of executive disobedience of court orders shows two distinctive rule of law problems that arise from disobedience. The rule of law will sometimes also be politically potent, but not always: the concept's fuzziness and the ability to make rule of law arguments on both sides of many issues are among the factors that can give the concept limited real-world power, especially under conditions of high polarization. A case study of prosecutions for apex criminality illustrates this challenge, given the frequent invocations of the rule of law on both sides of such prosecutions. Nonetheless, understanding the multiple dimensions of the rule of law can guide institutional designers in seeking to enable governance that vindicates the rule of law while reducing the likelihood of governance that threatens it.
Citation
Jonathan S. Gould,
The Public Rule of Law,
87 Law and Contemporary Problems
159-203
(2025)
Available at: https://scholarship.law.duke.edu/lcp/vol87/iss3/17