The “Rule of Law” and Judicial Engagement
We at IJ can disagree with other liberals on what “the law” should be but agree what “the rule of law” requires and that it is under threat.
It seems that every time a major legal confrontation arises, whether between the President and the courts or states and the federal government or any public official and prosecutors, you will hear one phrase rise above the din of accusations: “the rule of law.” “The President is failing to follow the rule of law.” “The court damaged the rule of law today.” “By bringing this prosecution we are standing up for the rule of law.” And given the number of legal confrontations in 2025 it seems everyone who is anyone is talking about “the rule of law.”
To some extent this is for good reason. The rule of law is under threat today. Luckily, one way to protect the rule of law is through IJ’s specialty, judicial engagement. At the end of this post I examine how judicial engagement and the rule of law—this concept everyone keeps invoking—go together.
But first there’s a basic question I will spend most of this post on. What actually is “the rule of law”? That part gets glossed over amid all the rule-of-law rhetoric. Yet, the gloss is somewhat excusable. “The rule of law” is famously difficult to define. I once attended a lecture where the speaker argued—persuasively, I thought—that “the rule of law” is inherently contestable. The concept is not alone in that regard, of course. Think of all the debates over the meaning of “beauty,” “being,” or “justice.” “Rule of law” sounds less abstract than those ideals, though, because we generally can point to what a “rule” is or when a “law” is being followed. Perhaps a specific law is not “good” but it is easier to figure out if it is being followed than distilling the meaning of “beauty.” That is not the full story, however. Many argue that just because a law exists and just because it is followed does not mean that “the rule of law” is present. (More on that below.)
And yet, even though a precise definition of “the rule of law” will evade us, some general outlines are possible—or so I’ll try and argue. And those outlines can guide how we assess the state of our constitutional order in 2025. As I posted here recently, we at IJ are very concerned about threats to the rule of law right now. This post follows up on that one with some reflections on the concept and how it relates to the judicial engagement that we advocate for and pursue at IJ.
“Thin” and “thick” rules of law
The “rule of law” is often defined as the alternative to “the rule of men.” If nothing else, this means that “law” is broader than simply one person issuing commands. If that person “rules” over everyone with his latest whim constituting “the law,” that is despotism, not the rule of law.
This basic understanding feeds into another maxim tied to the rule of law: that no one is above the law. Of course, a dictator is above the law by definition. The law does not bind what he legally can do. Putting this distinction between despotism and the rule of law into broader language gives us further principles. One is that law must be generally applied, i.e., everyone must be equal before the law. Another is that law must be preannounced. When people go about their lives the law applies the same to everyone and they can plan their behavior in accordance with rules they know ahead of time. Which brings up another related principle: that people be able to know what the law is. It doesn’t do much good if the law is preannounced if you can’t find it or can’t understand it.
These three criteria—preannouncement, equality under the law, and the opportunity to know what the law is—were at the core of Friedrich Hayek’s understanding of “the rule of law” in his works The Road to Serfdom (1944) and The Constitution of Liberty (1960). There was more to it than that (yes, I know I’m oversimplifying here!), but these principles were central. Yet, Hayek’s treatment, and evolution, on the rule of law helps illustrate the difficulties in defining it. The problem Hayek came to see—including in those works themselves—was that there are many examples of unjust and illiberal political and legal systems where those formalistic criteria were frequently followed. Hayek also included requirements for protection of private property and other qualifications on what the rule of law required, but the problem was that the central principles were unsatisfying. Regimes such as the Soviet Union and the Third Reich often technically met the three basic criteria but it seems embarrassing to say they lived up—or even came close—to “the rule of law.” Law can be preannounced, apply to everyone, and be understood and still be tyrannical.
How Hayek’s own views evolved is its own story (see Volume 1 of Law Legislation and Liberty or this piece I coauthored describing the shift), but he was not alone in advocating for a “thicker” understanding of the rule of law than a formalistic “thin” one. Many authors and institutions have detailed serial lists of requirements, including democracy, free speech, separation of powers, protection of private property, and an independent legal profession. For a short summary, see this helpful essay by the former dean of my law school, Robert Stein.
Not just “good law”
There is a danger in “thicker” understandings, however. Not a real-life danger, but a danger to the usefulness of “the rule of law” as a concept. The more is demanded of “the rule of law,” the more what the advocate is actually talking about is “the rule of good law.” And what is “good law”? Well, that’s kind of what we all argue about, all the time, anyway. If your definition of “rule of law” is the same as your ideal set of laws and institutions then what use is any shared understanding of “rule of law” in the first place? The promise of “the rule of law” is that we can disagree on particular laws and even particular systems but agree that the overarching principle of “the rule of law” is a kind of boundary we can all comfortably and peacefully coexist within.
Therefore, it is not true that disagreement on, say, whether the Privileges or Immunities Clause protects the right to earn a living is a litmus test on whether someone believes in “the rule of law.” I very much think that clause does protect the right to earn a living. But someone who disagrees can still passionately agree with me about what “the rule of law” requires and its necessity.
But that still leaves us with the question: What is it? The rule of law can’t be so thin that communists and Nazis follow it too. Yet it can’t be too “thick” that it’s just everyone’s specific policy preferences. What is this golden mean? And once we know what it is, how does that inform what the threats are to the rule of law today?
How judicial engagement helps the rule of law
It’s important to understand that no society has ever fully lived up to the rule of law. It is an ideal. Yet, ironically, at the same time it is a baseline. If a society does not mostly follow the rule of law it has serious problems. Thus, some societies come closer than others, of course, but those that fall far short are not even liberal societies; they’re much closer to dictatorships. Where societies have come closer to the ideal, Hayek’s three criteria have been essential. But, as he realized, they are not everything. So let me throw in a few others that make the rule of law a bit thicker, but not too thick.
One is separation of powers, especially of the courts. Before the state can punish you or take away your property you must be able to go before a third party with some degree of independence who will review whether the state is complying with the law and, if the state is not, have the power to let you go free and keep your stuff. Any modern democracy, when it is functioning, has this level of separation of powers. Even the United Kingdom, with no “higher law constitution” to protect against an overreaching legislature, has courts who can tell His Majesty’s Government when it is not complying with the law and can order it to stop. This is “judicial review” at its most basic level. Not Marbury v. Madison judicial review, just the power of courts to stop the executive from outright not following laws on the books.
Another is stability of the law, not just preannouncement. If the law changes every month it ceases to function as law and becomes more like the commands of a despot. This doesn’t mean that there is no “rule of law” if a legislature tinkers with the tax code every year (although it still shouldn’t!). But basic rules of just conduct, as Hayek called them, cannot continually change, even if posted in the village square every day at sunrise. Otherwise, people cannot plan for the future, always guessing what the law will be tomorrow.
And two others are related: freedom to criticize those in power and free elections. Speech should be free for many reasons, including many we advocate at IJ. This includes those tied to economic liberty, such as the freedom to speak for a living and the freedom to tell others about what your business has to offer. But if you cannot criticize those in power then you lose the ability to change who is in charge. This censorship can take the form of powerful people retaliating against those who voice an opinion or, more specifically, it can mean limiting what they can say in connection with elections. In turn, limiting or canceling those elections then allows those who abuse power to stay in power. Perhaps in theory a “benevolent dictator” could run the government and allow a free society to flourish subject to the rule of law, including a respect for the freedom of people to criticize him. But in practice? Let’s get real. Free elections are essential, as is the speech necessary for them to work. As imperfect as democracy is, as I’ve discussed before.
Putting these bare minimums for the rule of law together, you can see how important judicial engagement is. Going to court when those in power do not follow the law, and having judges who are not afraid to say so, is essential in any liberal constitutional order. Judges might not be able to stop legislators from continually amending statutes, but when elected representatives delegate that power to agencies and executives, using judicial engagement to circumscribe that delegated power is a backstop to executive overreach. And when agents of the state use its power to try and silence its critics, judges are needed to shut that retaliation down and allow people to advocate for change. Further, when it comes to actual elections, judges must be there to ensure our preannounced election laws are followed and those who otherwise are governed are allowed to govern who governs them.
IJ does not litigate in all of these areas. But, as the above links show, we do in most, and we recognize how judicial engagement is essential in all. There is a lot of activity in them right now. Many could argue about how existential a crisis there is in some areas or others. There certainly have been abuses in all of them in times before the present, with fingers that should be pointed at all federal administrations of the last few decades, not to mention state and local governments all over.
But I am especially worried about the present moment for two reasons. One concerns the tactics of the current federal administration, including, for example, the yo-yo chaos of tariff policy, the disregard for the law evident in IJ’s recent challenges to detentions of American citizens without probable cause, and attempts to silence critics no matter how large or small their microphones. The other concerns the continued neutering by the courts themselves of judicial engagement, whether through expanding immunity doctrines, narrowing remedies, and the frequent refusal of the Supreme Court to announce why it is doing what it is doing.
Still, much hope remains. Whatever administration comes next will have plenty of problems when it comes to the rule of law. Yet, as I have explained, the rule of law baseline is one that modern democracies should be able to follow. Americans are perfectly capable of doing so. Liberals of all kinds can agree on the rule of law I outline here even with large disagreements on what the Constitution requires and what substantive policies are good. We may not be meeting that baseline today. I trust, however, that judicial engagement can do its part in making it through today to a better tomorrow. And that tomorrow will have the same baseline, and ideal, of the rule of law.
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.