The Rise and Fall of the Rule of Law

Abstract

Holbrook challenges the view that the rule of law has been central to liberal democracy for over 200 years. By defining the rule of law as a legal quality that exists when the law reflects a broad consensus of societal standards and norms, it is clear that the rule of law has only been a feature of British society for a period of about 50 years, in the middle of the twentieth century. Before then the law was too weak to constitute the rule of law and its relationship to society was distant, because it could not engage with majority opinion, and antagonistic when it did. The change in the middle of the last century reflected law’s increased strength and ability to reflect a social consensus. This was a short-lived era during which the law enabled personal autonomy to flourish. During this era of about 50 years the law existed in the background to bolster socially agreed norms and only impacted coercively on that minority of individuals who strayed beyond its broad boundaries. In recent decades the law has retained its strength but now uses that strength to impose minority opinions on swathes of individuals who stray beyond law’s ever narrowing boundaries. The law’s relationship to society has once again become distant, because it does not engage with majority opinion, and antagonistic. Instead of the law enabling personal autonomy to flourish, the law now restricts it. In the present era the law fails to reflect a broad consensus of societal standards and norms and the rule of law has morphed into what is best described as the rule by law.