Violations of the rule of law: A typology to guide decision-makers

Abstract

Violations of the rule of law are among the most contested and consequential issues in contemporary public discourse and academic debate. At the core of these controversies lie enduring disagreements about what properly counts as a violation. This article applies analytical legal theory to clarify the debate by introducing a twofold disambiguation of the term ‘violations’ and by developing a typology designed to support decision-makers confronting rule of law challenges. The first disambiguation concerns the object of a violation, namely whether it pertains to the rule of law as a moral–political ideal or its legally enshrined extension. The second disambiguation distinguishes two types of violations lato sensu of the rule of law, namely violations stricto sensu and deficiencies, the criterion being the availability of resources for compliance. Together with two further binary distinctions, the resulting typology of rule of law violations provides a basis for justifying and determining which remedies—ranging from sanctions to measures of institutional support—are most appropriate.