Rule of law and rule by law

The rule of law and rule by law sound like the same commitment expressed with different prepositions. They are opposites. Under the rule of law, those who govern are themselves bound by rules they did not write for the occasion. Under rule by law, law is the instrument through which those who govern accomplish what they have already decided.

The second condition can be maintained with impeccable procedure. Statutes are passed, courts convene, judgments are handed down. What is missing is the constraint: nothing that the government seriously wants is ever finally prevented, and everyone involved knows it.

This is why the distinction cannot be settled by asking whether a country has independent courts on paper. It has to be asked concretely. Which decisions of the last decade went against the government of the day, and what happened afterwards? How are the people who apply the law selected, and by whom? What is the cost, to an ordinary citizen, of being right?

These are among the questions the Academy puts to fellows, without supplying the answers, because they are the questions on which the legitimacy of representative government actually rests. A political community that cannot answer them is not thereby lawless. It is something more difficult to describe and easier to become.