You Say it Best When You Say Nothing At All: “[the Rule of Law]”

The sentiment that forms the basis of this article's title can be applied to the contemporary concept of the Rule of Law.¹ Many early Rule of Law conceptions – widely accepted as providing an almost canonical idea of the concept – did not use the phrase ‘the Rule of Law’. Contemporary Western apex courts – for example in the recent Miller/Cherry case in the UK Supreme Court – sometimes discuss the concept without uttering the phrase.² These examples raise a question: when talking about the Rule of Law, is it possible, and is it useful, to not invoke the phrase ‘the Rule of Law’?

In this article, I wrestle with an issue relating to the way that the Rule of Law is frequently deployed. The Rule of Law is a fundamental concept across the world and in Anglo-American Western Democracies;³ yet, it remains a contested concept. When attempts are made to define its conceptual content in anything more than the most abstract terms disagreement arises. For these reasons, considering the benefit of apex courts’ decisions to not specifically invoke the concept – even where it is widely accepted that that is what they are talking about – takes on real salience. I do not go behind those decisions or consider the rationale for giving reasons in those terms. I do, however, consider both why courts’ decisions can be thought to relate to the Rule of Law and whether viewing courts’ and theorists’ contributions in this way can be a beneficial exercise.

I suggest that, in certain circumstances, there is benefit in not mentioning the Rule of Law (when talking about the Rule of Law). Whilst this may seem like a peculiar statement to make, there are a number of conceptions (explored later in this article) that are treated as canonical statements about what the Rule of Law is that do not mention the phrase. Accordingly, I do not criticise courts’ failures to invoke ‘the Rule of Law’. In circumstances where it is, nevertheless, accepted that the un-stated concept – ‘[the Rule of Law]’ – is being discussed, I suggest there must exist some sort of shared sense of what the idea of the Rule of Law currently encompasses. This could simply reflect a broadly drawn idea – as some sort of concept against the imposition of arbitrary power. But, as I illustrate, something more specific than this is accepted as being part of the concept of the Rule of Law in the various judges’ and theorists’ accounts that do not invoke the phrase. I will call these non-mentioning accounts ‘NMAs’.

By exploring the NMAs and through considering the benefits that flow from not mentioning ‘the Rule of Law’, I illuminate the general circumstances in which it is, and is not, appropriate to do so. In broad terms, I conclude that there are real benefits in not mentioning ‘the Rule of Law’ – when Rule of Law-relevant issues are being discussed – in circumstances where there already exists an intuitive notion of the Rule of Law in a particular society. I do, however, point out that regardless of this broadly stated conclusion, there will nevertheless be certain instances where invoking ‘the Rule of Law’ will be necessary.

In this article I accept what may be seen as an unusual juxtaposition of ideas: that the Rule of Law has value even though it cannot be reduced to a set of agreed propositions; and, that notwithstanding the potential of the concept to be essentially contested (in the Galliean sense), it is still important to consider – in detail – what is meant by the idea of ‘the Rule of Law’. What is clear is that there are a number of fundamental concepts that, despite their essentially contested status, would be seen as being both important and – perhaps because of their importance – worthy of detailed discussion.⁴ The concepts of democracy and justice would be immediate examples. A healthy literature exists in relation to the potential, and benefit, of identifying the content of the Rule of Law.⁵ In this article, I simply accept that, notwithstanding the problems inherent in doing so, considering the meaning of the Rule of Law remains an important exercise.

My argument takes this form: if it is possible to talk about the Rule of Law without mentioning the phrase, and if using the phrase would confuse the issue, then there may be benefit in not mentioning ‘the Rule of Law’. The structure of the article directly reflects this form. In the next Section, by pointing to the fact that it is both accepted and acceptable that a number of NMAs are talking about the Rule of Law, I suggest that it is possible to talk about the Rule of Law by not mentioning it. I do this by pointing to several theorists’ accounts and judicial decisions that do not specifically invoke ‘the Rule of Law’ yet are accepted to be about the Rule of Law. Then, in the third Section, by considering when mention of ‘the Rule of Law’ would confuse the issue, I suggest there may be benefit in not mentioning the concept in certain circumstances. In the final Section, I provide a broad conclusion as well as a discussion about what this may mean for the concept of the Rule of Law and the way in which it is deployed in the future.

The phrase ‘the Rule of Law’ is not mentioned in every piece of writing. This is generally because there is no intent to discuss the idea. However, this is not exclusively the case. The core of this article relates to accounts that do not mention the concept but do, nevertheless, relate to the idea. Most contemporary accounts relating to the Rule of Law invoke the phrase ‘the Rule of Law’. Yet, as will become clear, it is possible to discuss the Rule of Law without mentioning the phrase. This idea – that it is both accepted and acceptable that NMAs are talking about the Rule of Law – is what I illustrate in this Section through recourse to both theoretical accounts and case law. In doing so, I provide only a few illustrative examples that are sufficient to make my point.

First, however, it is useful to acknowledge some of the key accounts that do mention the Rule of Law and note why they are not explored in further detail here. Contemporary conceptions of the Rule of Law frequently do use the phrase ‘the Rule of Law’. Some of the most well-known accounts in this category will be well known to readers of this journal. Jeffrey Jowell's work on the Rule of Law has been a consistent feature of the public law landscape for many years.⁶ Tom Bingham's popular book also has received substantial recognition.⁷ Whilst important contributions, these, and many others, are not dealt with here as they specifically invoke the concept of the Rule of Law in a thick or substantive sense.⁸ The consideration below is limited to thin/formal accounts. The reason for this is largely one of simplicity. Limiting an examination to the formal terms allows the avoidance of ongoing debates regarding whether a thin or thick conception is preferable.⁹