In this article, I identify a number of commonly accepted assumptions from the literature associated with the Rule of Law and suggest that—whilst the assumptions are accepted as part of the conceptual narrative of the concept—the cogency of the assumptions falters when they are considered collectively. This article represents, in many respects, both a critique of current practices and a rallying cry in relation to future practices. Through illustrating that the form of conceptual change across canonical conceptions of the Rule of Law can impact the relative level of consistency in the assumptions that are used and relied on in the opening of so many Rule-of-Law-focused works, I demonstrate that there must—if we are to provide the strongest possible arguments relating to the contemporary idea of the Rule of Law—be consideration of the actual way in which change has occurred across conceptions. I argue that consideration of collective cogency is necessary for conceptual clarity and illustrate the essentiality of doing so by considering the assumptions in relation to two hypothetical mechanisms of change. This approach illustrates not only the general inconsistency, but also that inconsistency varies between the mechanisms. This variance leads to a fundamental problem: without the identification of the change mechanism that has operated across Rule of Law related ideas, there is no way to assess whether the Rule of Law’s common assumptions are, or can be considered to be, consistent with one another. I also suggest one way to solve this problem.
Burgess, P. (2019). The Rule of Lore in the Rule of Law: Putting the Problem of the Rule of Law in Context. Hague Journal on the Rule of Law. https://doi.org/10.1007/s40803-019-00096-0