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1 E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT 266 (1977).
2 Judith Shklar, Political Theory and the Rule of Law, in THE RULE OF LAW: IDEAL OR IDEOLOGY 1, 1
(Allan C. Hutchinson & Patrick Monahan eds., 1987).
3 2005 World Summit Outcome Document, U.N. Doc. A/RES/60/1 (Sept. 16, 2005), available at
http://www.un.org/summit2005, para. 134.
4 FRIEDRICH HAYEK, THECONSTITUTION OF LIBERTY 220-33 (1960).
5 THOMPSON, supra note 1, at 266. Prominent challenges to the rule of law have, of course, been offered by other Marxist scholars, critical legal theorists, feminist theorists, critical race theorists, queer theorists,
and others. In particular the notion of sameness is seen as reifying biases and positions of privilege.
Against this, as Thompsonargued, even if the rule of law serves an ideological function it must promote
values that are, in fact, valuable, and capable of being at least partially realized. See JEREMY WALDRON,
THE LAW 21-25 (1990). For an examination of criticisms of Thompson, see Daniel H. Cole, “An
Unqualified Human Good”: E.P. Thompson and the Rule of Law, 28 JOURNAL OF LAW AND SOCIETY 177
(2001).
6 Cf. MatthewStephenson, The Rule of Law as a Goal of Development Policy (World Bank, Washington,
DC, 2001), http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm.
7 Cf. Joseph Raz, The Politics of the Rule of Law, 3 RATIO JURIS 331 (1990).
8 Cf. Souren Teghrarian, Wittgenstein, Kripke and the “Paradox” of Meaning, in WITTGENSTEIN AND
CONTEMPORARY PHILOSOPHY 187-202 (Souren Teghrarian &Anthony Serafini eds., 1992); Bede
Rundle, WITTGENSTEIN AND CONTEMPORARY PHILOSOPHY OF LANGUAGE (1990) (problematizing the glib
rendering of Wittgenstein’s philosophy of language as “ask not for the meaning, but the use”).
9 H.-DIETER VIEL, THE COMPLETE CODE OF HAMMURABI (2005).
10 PLATO, THE REPUBLIC (Benjamin Jowett trans., Clarendon Press 1892) (360 BC). By The Laws, Plato
endorsed astronger position: “Where the law is subject to some other authority and has none of its own,
the collapse of the state, in my view, is not far off; but if law is the master of the government and the
government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods
shower on a state.” PLATO, THE LAWS 715d (Trevor J. Saunders trans., Penguin 1970)(360 BC).
11 ARISTOTLE, THE POLITICS (Benjamin Jowett trans., Nuvision (2004) (350 BC), III.16.
12 John Adams, Novanglus No. 7 (Jan. 1775), available at http://douglassarchives.org/adam_a50.htm.
13 Article 29 of the Magna Carta (1215) provided that “No Freeman shall be taken, or imprisoned, or be
disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled or anyotherwise
destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the
Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”
Available at http://www.yale.edu/lawweb/avalon/medieval/magframe.htm.
14 Prohibitions del Roy (1607) 12 Co Rep 63, 64-65; 77 ER 1342, 1343, quoting HENRY DE BRACTON, DE
LEGIBUSET CONSUETUDINIBUS ANGLIAE f. 5 b (c1250) (“Ipse autem rex, non debet esse sub homine sed
sub Deo et sub lege, quia lex facit regem.”).
15 See generally LAW, LIBERTY, AND PARLIAMENT: SELECTED ESSAYS ON THE WRITINGS OF SIR EDWARD
COKE (Allen D. Boyer ed., 2004); JOHN PHILLIP REID, RULE OF LAW: THE JURISPRUDENCE OF LIBERTY IN
THE SEVENTEENTH AND EIGHTEENTH CENTURIES (2004).
16 SAMUELRUTHERFORD, LEX, REX, OR THE LAW AND THE PRINCE: A DISPUTE FOR THE JUST
PREROGATIVE OF KING AND PEOPLE (Hess 1998) (1644).
17 THOMAS HOBBES, LEVIATHAN (Dent 1914) (1651), ch 29, para. 9. Hobbes does, however, note in the
same passage that “sovereigns are all subject to the laws of nature, because such laws be divine and
cannot by any man or Commonwealth be abrogated.” For an argument that...
2 Judith Shklar, Political Theory and the Rule of Law, in THE RULE OF LAW: IDEAL OR IDEOLOGY 1, 1
(Allan C. Hutchinson & Patrick Monahan eds., 1987).
3 2005 World Summit Outcome Document, U.N. Doc. A/RES/60/1 (Sept. 16, 2005), available at
http://www.un.org/summit2005, para. 134.
4 FRIEDRICH HAYEK, THECONSTITUTION OF LIBERTY 220-33 (1960).
5 THOMPSON, supra note 1, at 266. Prominent challenges to the rule of law have, of course, been offered by other Marxist scholars, critical legal theorists, feminist theorists, critical race theorists, queer theorists,
and others. In particular the notion of sameness is seen as reifying biases and positions of privilege.
Against this, as Thompsonargued, even if the rule of law serves an ideological function it must promote
values that are, in fact, valuable, and capable of being at least partially realized. See JEREMY WALDRON,
THE LAW 21-25 (1990). For an examination of criticisms of Thompson, see Daniel H. Cole, “An
Unqualified Human Good”: E.P. Thompson and the Rule of Law, 28 JOURNAL OF LAW AND SOCIETY 177
(2001).
6 Cf. MatthewStephenson, The Rule of Law as a Goal of Development Policy (World Bank, Washington,
DC, 2001), http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm.
7 Cf. Joseph Raz, The Politics of the Rule of Law, 3 RATIO JURIS 331 (1990).
8 Cf. Souren Teghrarian, Wittgenstein, Kripke and the “Paradox” of Meaning, in WITTGENSTEIN AND
CONTEMPORARY PHILOSOPHY 187-202 (Souren Teghrarian &Anthony Serafini eds., 1992); Bede
Rundle, WITTGENSTEIN AND CONTEMPORARY PHILOSOPHY OF LANGUAGE (1990) (problematizing the glib
rendering of Wittgenstein’s philosophy of language as “ask not for the meaning, but the use”).
9 H.-DIETER VIEL, THE COMPLETE CODE OF HAMMURABI (2005).
10 PLATO, THE REPUBLIC (Benjamin Jowett trans., Clarendon Press 1892) (360 BC). By The Laws, Plato
endorsed astronger position: “Where the law is subject to some other authority and has none of its own,
the collapse of the state, in my view, is not far off; but if law is the master of the government and the
government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods
shower on a state.” PLATO, THE LAWS 715d (Trevor J. Saunders trans., Penguin 1970)(360 BC).
11 ARISTOTLE, THE POLITICS (Benjamin Jowett trans., Nuvision (2004) (350 BC), III.16.
12 John Adams, Novanglus No. 7 (Jan. 1775), available at http://douglassarchives.org/adam_a50.htm.
13 Article 29 of the Magna Carta (1215) provided that “No Freeman shall be taken, or imprisoned, or be
disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled or anyotherwise
destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the
Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”
Available at http://www.yale.edu/lawweb/avalon/medieval/magframe.htm.
14 Prohibitions del Roy (1607) 12 Co Rep 63, 64-65; 77 ER 1342, 1343, quoting HENRY DE BRACTON, DE
LEGIBUSET CONSUETUDINIBUS ANGLIAE f. 5 b (c1250) (“Ipse autem rex, non debet esse sub homine sed
sub Deo et sub lege, quia lex facit regem.”).
15 See generally LAW, LIBERTY, AND PARLIAMENT: SELECTED ESSAYS ON THE WRITINGS OF SIR EDWARD
COKE (Allen D. Boyer ed., 2004); JOHN PHILLIP REID, RULE OF LAW: THE JURISPRUDENCE OF LIBERTY IN
THE SEVENTEENTH AND EIGHTEENTH CENTURIES (2004).
16 SAMUELRUTHERFORD, LEX, REX, OR THE LAW AND THE PRINCE: A DISPUTE FOR THE JUST
PREROGATIVE OF KING AND PEOPLE (Hess 1998) (1644).
17 THOMAS HOBBES, LEVIATHAN (Dent 1914) (1651), ch 29, para. 9. Hobbes does, however, note in the
same passage that “sovereigns are all subject to the laws of nature, because such laws be divine and
cannot by any man or Commonwealth be abrogated.” For an argument that...
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