9
UDC: 340.1
Andrej Auersperger Matić
*
Two Concepts of the Rule of Law
1. Introduction
The rule of law—along with democracy and human rights—is today one of the lead-
ing notions in international relations and an object of intense public debate in many 
countries.
1
 As a political ideal, it is typically invoked to argue for greater recognition 
of law and legal institutions in modern society and used as a criterion to distinguish 
between states in which law plays a prominent role and those in which it does not. As 
a legal principle, it is incorporated in the constitutions of many countries, is referred to 
by courts and elaborated in legal doctrine. Its rhetorical power has been strengthened by 
the worldwide growth of legalism and democratic governance, in particular through the 
spread of constitutionalism and the flowering of national and international human rights 
instruments, as well as by the increase in international trade and investment that is often 
accompanied by calls for legal security and protection of investors’ rights. Among legal 
experts, it has evolved into a talking point, and it is often quoted as a kind of self-evi-
dent postulate. Interestingly, the growth of the rule of law rhetoric is taking place even 
if there is no generally accepted understanding of what it actually is in either political 
or legal terms.
2
 After many years of invocation, its substance remains something of a 
*
 PhD (Maastricht University), European Parliament, Member of the Legal Service, External 
Relations Unit, andrej.matic@europarl.europa.eu. The views expressed by the author are strictly 
personal and do not engage neither the institutions nor the service for which he works.
1
 E.g. Bingham, The Rule of Law (2010); Carothers (ed.), Promoting the Rule of Law Abroad: 
In Search of Knowledge (2006); Kleinfeld, Advancing the Rule of Law Abroad (2012); 
Heckman, Nelson, Cabatingan (ed.), Global Perspectives on the Rule of law (2010); 
Tamanaha, On the Rule of Law: History, Politics, Theory (2004).
2
 Kleinfeld, Advancing the Rule of Law Abroad (2012), p. 7.
1

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mystery, posing a challenge for policymakers, legal professionals and academics alike.
3
 
Unlike human rights, the rule of law is not elaborated in any international instrument, 
and no existing legal system has attempted to provide a precise list of its requirements. 
Philosophical conceptions of this idea likewise cover a remarkable array of diverse un-
derstandings, ranging from the narrowly technical or legalistic that emphasise certain 
qualities of legislation, to the more moralistic ones that conflate this concept with human 
rights or broad principles of social justice.
Numerous works in legal philosophy examine the conceptualisation of the term “the 
rule of law” and explore its principles on an abstract level.
4
 A more contextual approach 
is taken by authors who analyse it from the perspective of constitutional history or with-
in the framework of constitutional traditions of one or more of the world’s legal systems.
5
 
At the other end of the spectrum, and concurrently with the increasing popularity of the 
rule of law phraseology in development policies and international affairs,
6
 studies on the 
rule of law have also become commonplace in social sciences, in particular, economics. 
In that field, they are typically concerned with issues such as the enforcement of con-
tract rights or the link between law and development.
7
 The meaning of the rule of law 
can also differ considerably depending on the social and geographical environment in 
which it is used. In the legal traditions of Western democracies, it is usually associated 
with the relationship between the individual and the state or as a basic tenet underlying 
the constitutional scheme of government. It is perceived as a complement to democratic 
decision-making, a limit on the powers of public administration or a guarantee that the 
rights of individuals will be enforced. It plays a part as an ideal that transcends the un-
certainties of electoral politics, especially in times when established notions of civil rights 
and liberties are challenged with increasing frequency, and the proper level of legal reg-
ulation of private business is hotly debated. In post-conflict, transitional and developing 
countries, on the other hand, the rule of law as an expression is typically used as a proxy 
for legality in general or as an indicator of observance of rules in society.
8
 In this sense, 
it is often considered as a solution to the problem of widespread lawlessness or other 
social problems such as corruption. Its absence is regularly highlighted, especially by 
international organisations and aid agencies, as one of the main reasons for limited pro-
gress of such countries on their way to stability, democratisation and economic growth. 
A broad agreement appears to exist that the rule of law is not “public order” and should 
3
 Magen, The Rule of Law and its promotion abroad: three problems of scope (2009), pp. 51–52.
4
 E.g. Shapiro (ed.), T he Rule of Law (1987); Dyzenhaus (ed), Recrafting the Rule of Law: the 
Limits of Legal Order (1999).
5
 Costa, Zolo (ed.), The Rule of Law: History, Theory and Criticism (2007).
6
 E.g. Mockle (ed.), Mondialisation et État de droit (2002).
7
 E.g. Dam, The Law-Growth Nexus: The Rule of Law And Economic Development (2006).
8
 E.g. Sajo, On Old and New Battles: Obstacles to the Rule of Law in Eastern Europe (1995), p. 97.

11
Andrej Auersperger Matić – Two Concepts of the Rule of Law
not be confused with “rule by law” or invocations of legality that seek to justify political 
repression or restrictions on personal freedoms on the ground of providing security.
9
 But 
beyond this minimum, definitions and understandings of the rule of law differ markedly 
even if its overall purpose appears to be intuitively clear.
To facilitate and clarify the contemporary rule of law debate, this article proposes a 
fundamental distinction between what might be termed classical and institutional inter-
pretations of this concept. It is suggested that under the classical—and among lawyers 
the most common—view, which was dominant in legal and political theory for most 
of the twentieth century, the rule of law was understood as a constitutional principle, 
broadly expressing liberal doctrines on the proper relationship between law, the indi-
vidual and the modern constitutional state. It was elaborated within the context of na-
tional legal systems and dealt mainly with issues arising under public law. In the last few 
decades, however, we have also witnessed, especially in the international context, the 
appearance of another, more general and empirical usage of the term, applied mainly to 
the working of legal institutions. While being broader in scope, references to the rule of 
law of this kind are characterised by a preoccupation with questions about whether and 
how law works in practice, not just in relation to the state but also in relations between 
individuals. This version of the rule of law is notable for the inclusion of considerations 
relating to private law and the protection of private rights and is often strongly associated 
with the working of judicial institutions and dispute resolution procedures. Most impor-
tantly, however, it is marked by the insistence that legal rules and institutions must not 
only exist on paper or formally but must also be effective. The institutional view of the 
rule of law, therefore, supplements the classical view with new elements that highlight 
institutional objectives in legal and public discourse about the legitimacy of law.
To understand the significance of the change in the conceptualisation of the rule of 
law that has given rise to the distinctive constitutional and institutional uses of this no-
tion, it is helpful to sketch briefly its historical development and its main assumptions, 
starting with its origins in the liberal tradition.
2. The Classical Concept
Although some authors associate the general idea of a society governed by law to 
ancient philosophy and in particular with Aristotle,
10
 it is probably more accurate to 
consider that the nucleus of what is now referred to as the rule of law developed with 
the rise of the modern liberal state, framed by the Enlightenment thinkers and in polit-
ical terms put into practice by the English, French and American revolutions, followed 
9
 Tamanaha, On the Rule of Law: History, Politics, Theory (2004), p. 92; Ginsburg, Moustafa 
(ed.), Rule by Law: The Politics of Courts in Authoritarian Regimes (2008).
10
 Shklar, Political Theory and the Rule of Law (1987), pp. 1–3.

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by the spread of liberal political regimes around the world.
11
 It was the rise of modern 
liberalism that laid the foundations of a social order in which the relations between the 
individual and the state are legally defined, and it is from that point onward that one 
can really speak of law-based societies. The crucial relation that defines the constitutional 
understanding of the rule of law—the relation between law and individual freedom–is 
accordingly the central tenet of liberal thinking on how to reconcile individual rights 
with the necessity to provide social order and government, explained at length in the 
canonical texts of liberal thought. Locke, for example, famously wrote that
“Freedom of Men under Government is, to have a standing Rule to live by, com-
mon to every one of that Society, and made by the Legislative Power erected in it; 
a Liberty to follow my own Will in all things, where the Rule prescribes not; and 
not to be subject to the inconstant, uncertain, unknown, Arbitrary Will of another 
Man”.
12
This is how the rule of law is often described even today, as the rule of laws as opposed 
to the rule of men. However, to ensure that law actually “rules” in social life, the modern 
state must be organised according to principles that allow legal instruments and institu-
tions rather than individuals to regulate and control public power and private conduct. 
This is why political ideas recognising the essential role that law plays in protecting free-
dom and institutional arrangements that make that possible—such as the separation of 
powers, constitutional government, judicial review of legislation and the listing of basic 
rights in fundamental legal texts—are part of a long-standing Western liberal tradition 
and its emphasis on the legality of state action. The “rule of law” as an expression, how-
ever, only appeared in nineteenth-century constitutional thought in Europe. According 
to Costa, the common threads in the conceptualisation of this idea were the link between 
law and power, the possible legalisation of power and the numerous strategies used to 
control power by law.
13
 Although it has always expressed a common “anti-voluntaris-
tic” stance in different legal systems, its main objective has been developed in different 
shapes, by judge-made law in Great Britain and with “advanced constitutional engineer-
ing” on the continent.
14
 The practical dimension of the rule of law is evident especially 
in the fact that the solution offered to the problem of controlling power was to resort to 
judicial decision-making.
15
11
 Shapiro (ed.), The Rule of Law (1987), p. 1.
12
 Locke, Second Treatise of Civil Government, 4, 22 (1980).
13
 Costa, The rule of law: a historical introduction (2007), p. 134.
14
 Ibid., p. 135. 
15
 Ibid., p. 137.

13
Andrej Auersperger Matić – Two Concepts of the Rule of Law
2.1. Theoretical Exploration
In England, the concept of the rule of law was first popularised by Albert Venn Dicey, 
a law professor at Oxford University, who devoted a significant part of his famous 1885 
treatise entitled An Introduction to the study of the Law of the Constitution to an elabo-
ration of certain salient features of English common law and, even more importantly, 
British constitutional arrangements.
16
 These features, Dicey argued, express an overar-
ching idea that he called “the rule of law”, which protects personal liberty and indicates 
deeply held beliefs about the limits of governmental power. The first principle states “no 
man is punishable or can be lawfully made to suffer in body or goods except for a dis-
tinct breach of law established in ordinary legal manner before the ordinary courts of the 
land”.
17
 The principle combines the ideals of legal foreseeability and due process, which 
can be contrasted with every system of government based on the exercise by persons in 
authority of wide, arbitrary or discretionary powers. Secondly, the rule of law implies 
that “no man is above the law”, so that “every man, whatever be his rank or condition, 
is subject to the ordinary law of the realm and amenable to the jurisdiction of ordinary 
tribunals”.
18
 This principle underlines the importance of equality before the law and, in 
particular, the use of general courts to deal with all kinds of legal cases, including those 
relating to public officials.
19
The third—and the most interesting—component principle of the rule of law was 
formulated more indirectly. Speaking of the predominance of the “legal spirit”, which 
he considered to be a special attribute of English institutions, Dicey noted that general 
principles of the constitution (as for example the right to personal liberty, or the right of 
public meeting) are in England “the result of judicial decisions determining the rights of 
private persons in particular cases brought before the Courts”.
20
 The rule of law may ac-
cordingly be used as a formula for expressing the fact that in England the rules “which in 
foreign countries naturally form part of a constitutional code, are not the source but the 
consequence of the rights of the individuals”.
21
 This observation implies that legal securi-
ty does not come from having a written constitution, but rather from being able to go to 
the courts to remedy any breach of rights and liberties. The rule of law, in Dicey’s view, is 
not satisfied with “vertical” notions of legality or compliance with certain principles such 
as equality, but rather with a “horizontal” system of effective judicial remedies and the 
existence of powerful independent courts. From the very beginning, therefore, the doc-
16
 Dicey, Introduction to the Study of the Law of the Constitution (1982), pp. 107–108.
17
 Ibid., p. 110.
18
 Ibid., p. 114.
19
 Santoro, The Rule of Law and the »Liberties of the English«: The Interpretation of Albert Venn 
Dicey (2007), p. 165.
20
 Dicey, Introduction to the Study of the Law of the Constitution (1982), p. 115. 
21
 Ibid., p. 121.

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trine of the rule of law, even if formulated in a public law context, has had a procedural 
dimension and emphasised judicial protection as an essential aspect of a legitimate legal 
order. Dicey’s theory accordingly contains the “seeds, perhaps, of a political philosophy 
capable of generating important conclusions about the standards of justice and fairness 
which government may be expected to meet”.
22
Continental variants of the rule law trace their origins to the German concept of 
Rechtsstaat—or “law-based state”—developed in the nineteenth century by German le-
gal theorists who wanted to formulate liberal political demands regarding the structure 
of the state in opposition to the absolutist regime or the “police state”.
23
 The idea was 
not without controversy, with differences between liberal and conservative interpreta-
tions offered by different authors.
24
 One of important early liberal defenders was, for 
example, Karl Theodor Welcker, who distinguished the Rechtsstaat from a despotic or 
theocratic state by pointing out that its guiding principle is reason, and argued on that 
basis for constitutional rule and free speech.
25
 In general, the theory of the Rechtsstaat 
was developed as a claim that actions of state authorities should be based on legal rules, 
that regulation by formal law should be required especially for state action relevant for 
individual freedom and property rights and that all administrative actions should be 
subject to judicial review. The concept of Rechtsstaat has however also been criticised, 
notably by positivist thinkers like Hans Kelsen, whose theory on the identity of the state 
and law renders such a concept nonsensical. According to Kelsen, state power can be 
“distinguished from other power relationships by the fact that it is legally regulated”,
26
 
and because the state should be understood as a legal order, every state is by definition a 
Rechtsstaat. The French legal philosopher Michel Troper defended a similar view, point-
ing to the contradictory nature of the idea of a law-based state.
27
The idea that legal institutions can be conceptually encapsulated with specific con-
straints as regards their structure and working methods based on the very concept of 
law also became popular among twentieth-century political thinkers. Friedrich Hayek, 
to take the most famous example, used the rule of law in his political philosophy and 
sought to demonstrate that law as such required the respect of basic liberal principles. 
Recognising that economic issues depend on the institutional context, Hayek used the 
rule of law as a general description of the differences between authoritarianism and free-
dom, arguing in favour of a minimal state and against executive discretion. In his view, 
22
 Allan, Law, Liberty, and Justice (1993), p. 46.
23
 Heuschling, État de droit, Rechtsstaat, Rule of Law (2002), pp. 36–43; Šarčević, Der 
Rechtsstaat (1996).
24
 Gozzi, Rechtstaat and Individual Rights in German Constitutional History (2007), pp. 237–259.
25
 Welcker, Die letzten Gründe von Recht, Staat und Strafe (1964).
26
 Kelsen, Pure Theory of Law (1967), p. 289.
27
 Troper, La théorie du droit, le droit, l’État (2001).

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Andrej Auersperger Matić – Two Concepts of the Rule of Law
“nothing distinguishes more clearly a free country from a country under arbitrary gov-
ernment than the observance in the former of the great principle known as the Rule 
of Law”.
28
 Echoing the liberal view on the relation between law and freedom, he took 
the rule of law to mean that government is in all its actions “bound by rules fixed and 
announced beforehand”, so that within the known rules of the game, the individual is 
free to pursue his personal ends. In his view, a political order based on the rule of law is 
characterised by formal rules, written impartially, with equality before the law and with 
the universal application of the law. In his later work, Hayek claimed that the rise of state 
power in the twentieth century had changed the role of law and removed many guar-
antees of individual liberty that the rule of law was designed to ensure. In this context, 
he defined the rule of law as “a doctrine about what the law ought to be, a meta-legal 
doctrine or a political ideal”.
29
In contrast with broad statements that characterise political philosophy, views of the 
rule of law developed by legal theorists have taken a more cautious approach to its defi-
nition, taking account of the fact that it is difficult to deduce specific political values 
from the structure of law as such. The dominant group of views on the rule of law in 
the Anglo-American tradition accordingly consists of “formal” theories that focus on 
procedural requirements of good law-making but do not pronounce themselves on the 
content of law.
30
 Among these, the theory proposed by Lon L. Fuller has gained special 
prominence. Fuller considered the rule of law as an expression of the qualities that are 
characteristic of a good legal system, based on the “inner morality” of law.
31
 These qual-
ities include generality (rules of conduct are widely applicable), publicity (the public 
can learn about the rules to be observed), prospective effect (retroactive change is not 
permitted), clarity (rules can be understood), consistency (laws must not be contradic-
tory), possibility (rules should not require action that cannot be undertaken), stability 
(rules should not change too frequently) and congruence (consistency between the stated 
rules and their actual administration). The rule of law is then the state of affairs, which 
can be said to exist when every one of these principles of legality is satisfied above some 
threshold level.
32
 In terms of scope, Fuller’s list contains several prescriptions for good 
law-making practice and says little about either the content of the rules themselves or the 
legal process. Nevertheless, his account of the rule of law is “value-laden”, a complex of 
both what is and what ought to exist in a legal system.
33
28
 Hayek, Road to Serfdom (2007), p. 112.
29
 Hayek, The Constitution of Liberty (1960), p. 206.
30
 Craig, Formal and substantive conceptions of the rule of law: an analytical framework (1997), pp. 
467–487.
31
 Fuller, The Morality of Law (1964).
32
 Kramer, Objectivity and the Rule of Law (2007), p. 142.
33
 Summers, Lon L. Fuller (1984), p. 26.

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A more restrictive approach was defended by English positivist thinker Joseph Raz, 
who started from the premise that the rule of law means literally what it says, which is 
that “people should obey the law and be ruled by it”.
34
 The corollary of this premise is 
that law must be such that people will be able to be guided by it, and for this reason, 
the rule of law implies certain basic principles. Thus, a legal system must provide that 
laws are prospective, open and clear; stable and not changed too frequently; and adopted 
following clear rules and procedures.
35
 Moreover, the independence of the judiciary must 
be guaranteed, as must the principles of “natural justice”, which refers to requirements 
of fair judicial procedure and includes open and fair hearing and the absence of bias.
36
 
Finally, Raz added that courts should have the power of review over how the other prin-
ciples are implemented, that they should be easily accessible and that the discretion of 
law enforcement and crime prevention agencies “should not be allowed to pervert the 
law”.
37
 The list proposed by Raz is wider than the one proposed by Fuller, and it includes 
some institutional conditions, such as an independent judiciary and judicial review, ac-
cess to courts as well as a broad prohibition of “undue discretion” in crime prevention. 
However, institutional conditions of this kind appear to be instrumental to the objective 
of achieving observance of legal rules. Raz emphasised that law, in general, is valued 
because it stabilises social relationships and because it provides a safe basis for individual 
planning. This latter aspect is the main concern of the rule of law, which simply calls for 
law to allow individuals to orient their behaviour and minimise the dangers related to the 
exercise of discretionary power. Under this view, in stark contrast to the one advocated 
by Hayek, the rule of law protects human dignity in the sense that it respects humans as 
being able to plan their actions, but does not as such prevent government interference 
and is, in fact, compatible with violations of human rights.
The formal approach has been criticised by theorists who consider the rule of law as 
implying at least some constraints on what law can contain.
38
 Among the best-known 
contemporary theories following this view is the one expounded by Ronald Dworkin, 
who defended a theory that places emphasis on the protection of “moral and political” 
rights. His qualification is broad, referring to the rule of law as “a coherent and un-
compromised vision of fairness and justice”.
39
 In opposition to the formal conceptions, 
which he claims are based on a narrow “rule-book” understanding of the law, Dworkin 
has claimed that the rule of law “assumes that citizens have moral rights and duties 
34
 Raz, The Authority of Law (2009), p. 212.
35
 Ibid., pp. 214–215. 
36
 Ibid., p. 217.
37
 Ibid., p. 218. 
38
 Craig, Formal and substantive conceptions of the rule of law: an analytical framework (1997), p. 477.
39
 Dworkin, A Matter of Principle (1985), p. 2.

17
Andrej Auersperger Matić – Two Concepts of the Rule of Law
with respect to one another, and political rights against the state as a whole”.
40
 It insists 
that these moral and political rights be recognised in positive law, so that they may be 
enforced upon the demand of individual citizens through courts or other judicial insti-
tutions of the familiar type, so far as this is practicable. The rule of law on this concep-
tion is, therefore, an ideal of rule by an accurate public conception of individual rights, 
which in his theory are seen as “trumps over some background justification for political 
decisions that states the goal of the community as a whole”.
41
 Because the centrepiece of 
his theory is the protection through law of rights to “moral and political independence” 
of individuals,
42
 Dworkin does not accord a special role to judicial institutions or their 
effective operation. His understanding of the judicial process is rather an ancillary one, 
in the limited sense that rights must be enforceable at the request of individuals, not only 
against the state but also against other individuals. This understanding of the rule of law 
is, therefore, primarily an interpretive one, based on the idea that the legal system must 
enforce certain moral and political rights and must be available for claims presented by 
individuals so that the outcome is substantive justice.
By contrast, procedural aspects of law play a prominent part in the critique of the 
formal view of the rule of law by Jeremy Waldron, who recognises that the rule of law is 
one of the most essential political ideals of our time and understands it as a normative 
ideal that arises out of the understanding of law.
43
 The concepts of “law” and the “rule of 
law” are in his view interrelated, so that by positing several defining characteristics of law, 
one also defines the most prominent requirements of the rule of law. Three out of five 
characteristics or features of a positivist account of law that he identifies—systematicity, 
the existence of general norms and the existence of courts—are in his view intimately 
connected with the idea of the rule of law.
44
 Legal systems may be evaluated and catego-
rised in terms of either law or the rule of law, except that in the first case, there is a breach 
of some minimum threshold, while a reproach in terms of the rule of law represents 
“continuing upward pressure” for a legal system to do better.
Following this starting point, Waldron distinguishes between the conceptions of the 
rule of law that emphasise legal certainty, predictability and determinacy of the norms 
that are upheld in society on one hand, and a separate current of thought in the rule 
of law tradition that emphasises procedural issues, which is most common in political 
and public use. He notes that complaints relating to the rule of law are typically that 
governments have “interfered with the operation of the courts, compromised the inde-
pendence of the judiciary, or made decisions affecting people’s interests or liberties in a 
40
 Ibid.
41
 Dworkin, Rights as T rumps (1984), p. 153.
42
 Ibid., p. 162.
43
 Waldron, The Concept and the Rule of Law (2008), p. 59.
44
 Ibid., p. 44.

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way that denies them their day in court”.
45
 Moreover, he points out that “no conception 
of law will be adequate if it fails to accord a central role to institutions like courts, and 
to their distinctive procedures and practices, such as legal argumentation”.
46
 In his view, 
conceptual accounts of law that only emphasise rules and say nothing more about legal 
institutions are too casual in their understanding of what a legal system is. Waldron’s in-
terpretation of the rule of law is therefore distinctly procedural, but unlike those of Fuller 
or Raz, focused on legal institutions rather than legislative practices.
2.2. Constitutional applications
The extensive treatment accorded to the rule of law in English and American litera-
ture contrasts curiously with the fact that in the English-speaking world, this phrase is 
primarily a legal and political expression, commonly used in political discourse, legal 
theory
47
 or in court decisions,
48
 but does not appear as such in constitutional or other 
legal instruments of importance and is not a formally binding legal principle. This lack 
of formal legal status can be contrasted with the situation on the European continent, 
where concepts drawn from the German Rechtsstaat gradually came to form a part of 
constitutional law and are referred to in many national constitutions. During the twenti-
eth century and notably after the Second World War, the concept of Rechtsstaat became 
a preeminent legal principle expressing the ideas relating to democratic constitutional 
principles, basic rights (Grundrechte) and social justice. In Germany, the Rechtsstaat be-
came a legally binding constitutional principle of cardinal importance, incorporated into 
the German Basic Law (Grundgesetz).
49
 While the German Federal Constitutional Court 
has never provided a general definition of the Rechtsstaat principle, it has produced a 
case law in which the principle is applied on a case-by-case basis.
50
 German theory and 
subsequent constitutional incorporation of the Rechtsstaat have been highly influential 
in other parts of the European continent, notably in Southern Europe (as stato di diritto 
in Italy and Estado de derecho in Spain) and—after the fall of the Berlin wall—in Eastern 
Europe, where most post-communist constitutions adopted it as a fundamental legal 
principle (for example as pravna država in Slovenia and Croatia, právní stát in the Czech 
Republic or jogállam in Hungary).
45
 Ibid., p. 55.
46
 Ibid.
47
 E.g. Shapiro (ed.), The Rule of Law (1987); Lord Woolf, The judiciary of England and Wales and 
the rule of law (2006) p. 613.
48
 Fallon, “The Rule of Law” as a Concept in Constitutional Discourse, p. 24.
49
 Kunig, Das Rechtstaatsprinzip (1986).
50
 Von Münch, Kunig (ed.), Grundgesetz Kommentar (2012), Band 1, comments on Article 20; 
Dreier (ed.), Grundgesetz Kommentar (2006), comments on Article 20.

19
Andrej Auersperger Matić – Two Concepts of the Rule of Law
French constitutionalism has been something of an exception to this trend because of 
the strong parliamentary tradition in France, even if the concept of the rule of law was 
well known since the early twentieth century.
51
 The term État de droit, a direct translation 
from the German Rechtsstaat, was used by early twentieth-century legal theorists such as 
Leon Duguit to argue for constitutional limits to state power.
52
 Another contemporary, 
the positivist thinker Raymond Carré de Malberg, famously distinguished the concept 
of État de droit from a legalistic understanding of État légal on the theory that the former 
subjects its power to the authority of law.
53
 Academic acceptance of this idea, however, 
had no impact on formal constitutional texts. The 1958 French constitution does not use 
the notion of État de droit and the Conseil constitutionnel has also refrained from referring 
to it in its case law. Nevertheless, in contemporary French legal culture, the concept of 
the État de droit is regularly used in legal doctrine to denote the state based on principles 
of higher order that differs from État légal understood in the sense of a state based on 
legislative supremacy.
54
The rule of law and its counterparts, such as the Rechtsstaat have also been taken 
over in many international treaties and documents. On the international level, countless 
declarations now refer to the rule of law as a matter of course. The 2000 Millennium 
Declaration
55
 of the United Nations General Assembly, for instance, refers to it in three 
places, and the General Assembly has also adopted many resolutions on the subject.
56
 
The concept is however most visible in the treaties that have laid the groundwork for 
European political and legal integration and the practice of European institutions. 
Article 3 of the Statute of the Council of Europe
57
 declares that “Every member of the 
Council of Europe must accept the principles of the rule of law”, while the Preamble to 
the European Convention on Human Rights refers to Europe’s “common heritage of 
political traditions, ideals, freedom and the rule of law”. Similarly, Article 2 of the T reaty 
on the European Union
58
 cites the rule of law among the values on which the European 
Union is founded and emphasises that these values are “common to the Member States”, 
as does the Charter of Fundamental Rights of the European Union in its Preamble.
59
 A 
frequent reference to the rule of law as a concept of constitutional significance can also be 
51
 Heuschling, État de droit, Rechtsstaat, Rule of Law (2002), pp. 376–431.
52
 Duguit, Manuel de droit constitutionnel (2007).
53
 Raymong, Contribution à la théorie générale de l’ état (1962), pp. 488–493.
54
 Louis Favoreu and others, Droit constitutionnel (2016), pp. 30, 92.
55
 General Assembly of United Nations, United Nations Millennium Declaration (2000).
56
 General Assembly of United Nations, The rule of law at the national and international levels 
(2006).
57
 Statute of the Council of Europe ETS No 1. 
58
 T reaty on European Union (TEU), OJ C 326/13 (2012).
59
 Charter of Fundamental Rights of the European Union, OJ C 389/83. 

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found in the case law of the Court of Justice of the European Union ever since the latter 
declared, in the Les V erts case, that “the European Economic Community is a community 
based on the rule of law, inasmuch as neither its members states nor its institutions can 
avoid a review of the question whether the measures adopted by them are in conformity 
with the basic constitutional charter, the Treaty”.
60
 This principle has been reiterated on 
numerous occasions. A prominent example is the Kadi case, where the Court of Justice 
referred to the rule of law in connection with the requirement of judicial review of sanc-
tions against individuals imposed by the United Nations Security Council.
61
 The themes 
of due legal process, judicial review and subordination of political authority to constitu-
tional principle figured prominently in that decision.
From its modest and mainly declaratory beginnings in the case law of the Court of 
Justice and the texts of the founding treaties, the rule of law over time has been trans-
formed into a fundamental postulate of the European Union that can have practical 
consequences. Its status is notably reflected in the possibility, under Article 7 TEU, of 
sanctioning a member state in case of a breach of the values of the European Union, in-
cluding the rule of law. This “nuclear option” is supposed to be used where the actions of 
a member state can be said to constitute a systemic or flagrant violation of those values. 
In a 2014 communication, the European Commission proposed as a framework for the 
application of Article 7 TEU and outlined a basic understanding of the rule of law for 
that purpose.
62
 The Commission admitted that the “precise content of the principles and 
standards stemming from the rule of law may vary at national level”, but it nevertheless 
identified a “core meaning” which was said to be constituted by principles that include 
“legality, which implies a transparent, accountable, democratic and pluralistic process for 
enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; inde-
pendent and impartial courts; effective judicial review including respect for fundamental 
rights; and equality before the law”.
63
 The Commission elaborated its view by pointing 
to the need to ensure confidence in the legal systems of the member states, especially as 
regards their judicial systems.
64
In terms of substance, one might infer a generalised constitutional meaning of the 
rule of law in Europe from a document of the so-called Venice Commission, a special 
advisory body within the Council of Europe, which has published an official report on 
the subject stating that “a consensus can now be found for the necessary elements of the 
60
 Case 294/83 Partie Ecologiste ‘Les Verts’ v European Parliament ECLI:EU:C:1986:166, para 23.
61
 Case C-402/05 P Kadi and Al Barakaat International Foundation v Council and Commission 
ECLI:EU:C:2008:461, paras 281 and 288.
62
 European Commission, ‘A new EU Framework to strengthen the Rule of Law’ (Communication) 
COM (2014) 158 final2 (corrigendum). 
63
 Ibid., p. 4.
64
 Ibid.

21
Andrej Auersperger Matić – Two Concepts of the Rule of Law
rule of law as well as those of the Rechtsstaat which are not only formal but also substan-
tial or material”.
65
 These are:
(i)  Legality, including a transparent, accountable and democratic process for enacting 
law,
(ii) Legal certainty,
(iii) Prohibition of arbitrariness,
(iv) Access to justice before independent and impartial courts, including judicial review 
of administrative acts,
(v) Respect for human rights and
(vi) Non-discrimination and equality before the law.
66
These principles clearly reflect a constitutional character of the rule of law idea in 
formal contexts, a view supported by legal writers who now describe the concept as
“[T]he normative and institutional framework of the European modern state 
which, on the basis of an individualistic philosophy […] entrusts the legal system 
with the primary task of protecting civil and political rights, thus contrasting, for 
this purpose, political authorities’ inclination towards arbitrariness and misuse of 
their powers”.
67
A similarly value-laden understanding is advocated by Jowell, who sees the rule of law 
as a “principle of institutional morality inherent in any democracy”.
68
 Despite its failings 
and limits, the concept “compels the view that all power, however legitimately gained, 
needs, in a democracy worthy of its name, to be exercised in a manner that that is con-
strained by its underlying values”, with the main contribution of the common law in this 
respect being the development of the content of the rule of law through judicial review.
69
 
Perhaps the most renowned of recent definitions is however the one by Bingham, who 
considered that in a state governed by the rule of law “all persons and authorities within 
the state, whether public or private, should be bound by and entitled to the benefit of 
laws publicly made, taking effect (generally) in the future and publicly administered in 
the courts”.
70
 In such a state, the legal system adheres to the principles of accessibility 
of the law, non-discretionary application of the law, equality before the law, fair and 
reasonable exercise of power within limits, human rights, means to resolve disputes, fair 
trial and compliance of the state with obligations in international and national law. It is 
apparent, therefore, that the predominant legal conceptualisation of the rule of law to-
65
 European Commission on Democracy through Law (Venice Commission), ‘Report on the rule of 
law’, document CDL-AD(2011)003rev (Council of Europe 2011) 10.
66
 Ibid.
67
 Costa, Zolo (ed.), The Rule of Law: History, Theory and Criticism (2007), pp. 29–30.
68
 Jowell, The rule of law and its underlying values (2007), p. 5.
69
 Ibid., p. 24.
70
 Bingham, The Rule of Law (2010), p. 8.

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day is constitutional and that it acts mainly as an argument in favour of procedural due 
process, judicial review and legal certainty.
3. The Institutional Concept
The process of democratisation and the progressive building of a market economy in 
many parts of the world in the last decades of the twentieth century have affirmed the 
political impetus of the rule of law in the constitutional context, but it has also brought 
new questions about the appropriate relationship between law and society and the prior-
ities that legal reforms must address in places where legal rules and institutions are weak. 
Even in economically advanced societies, one can witness, in the last three decades, grow-
ing recognition of the crucial role that stable and effective legal institutions—and judicial 
institutions in particular—play in the protection of legal rights and the corresponding 
promotion of economic growth and social development.
71
 This is why the concept of 
the rule of law has gradually started to be referred to in a much broader and often in a 
more pragmatic sense, as a byword for the necessary functional qualities of a given legal 
system rather than a set of accepted standards protecting against arbitrary state action. 
It is therefore not surprising that one of the characteristics of the contemporary rule of 
law discourse is that it appears not only in legal texts but also in political and economic 
debates, with an understanding of the rule of law that differs considerably from classical 
constitutional conceptions. The new rule of law paradigm is distinct from antecedents in 
that the rule of law is now seen as wide in scope, involves factors not included in tradi-
tional uses of the term and purports to cover all kinds of legal relations, both public and 
private. This development is evident both in theory and in practice, in particular in the 
work of international organisations and institutions that seek to promote legality in view 
of supporting social development and economic growth.
3.1. New Conceptualisations
The conceptual widening of the rule of law has been noted by authors who define 
the rule of law as a “tenet according to which law imposes limits on the exercise of 
power by government and private interests”.
72
 The rule of law, therefore, does not only 
impose legal restraints on government officials, but also maintains order and coordinates 
behaviour and transactions among citizens. In this perspective, it is pointed out that the 
purpose of law is manifold and that it provides multiple benefits to society.
73
 It not only 
71
 E.g. Order in the jungle – Economics and the Rule of Law, URL: https://www.economist.com/
briefing/2008/03/13/order-in-the-jungle. 
72
 Tamanaha, On the Rule of Law: History, Politics, Theory (2004), p. 137.
73
 Ibid.

23
Andrej Auersperger Matić – Two Concepts of the Rule of Law
ensures freedom but also provides increased certainty, limited discretion of government 
officials, the keeping of peace in society, economic development and the provision of 
justice for individuals.
74
 A comprehensive conceptual framework relating to this kind of 
thinking about the rule of law has been proposed in a study by Trebilcock and Daniels, 
who start from the premise that the rule of law is a “universal social good tied inextricably 
to development”.
75
 Trebilcock and Daniels reject the linking of the rule of law to any 
particular political organisation, economic philosophy or legal culture. They also do not 
think that the rule of law is obedience to rules or based on concrete substantive princi-
ples. Rather, they focus on institutional structures responsible for administering the law, 
based on a set of procedural values, which are divided into “process values” (such as pre-
dictability), “institutional values” (such as independence) and “legitimacy values”.
76
 On 
this basis they define a set of institutions which constitute the essential elements of the 
rule of law—such as the judiciary, police, prosecution, correctional institutions and tax 
administration—and elaborate a set of “structural conditions” reflective of these core val-
ues. In this conception of the rule of law, primacy is given to key legal institutions, whose 
good or bad functioning is a criterion to determine whether the rule of law exists or not.
Among legal theorists, Kennedy has proposed a definition consistent with this per-
spective by arguing that the notion of the rule of law requires
“[T]hat there be justiciable legal restraints on what one private party can do to 
another, and on what executive officers can do to private parties; That judges un-
derstand themselves to be enjoined to enforce these restraints independently of 
the views of the executive and the legislature, and of political parties; That judges 
understand themselves to be bound by a norm of interpretive fidelity to the body 
of legal materials that are relevant to whatever dispute is before them.”
77
According to Kennedy, who expressly characterises his definition as “procedural” or 
“institutional”, rights of citizens under the rule of law are “logical corollaries of justicia-
ble restraints on private and public action”.
78
 The salient point is the intuitively logical 
link between the significance of private law relations among persons in modern society 
and the procedural dimension of the legitimacy of law, which is supported by institu-
tional qualities like independence or impartiality.
In the European context, an important contribution to this debate, based on an in-
stitutional conceptualisation of the rule of law, has recently been made by von Bogdandy 
and Ioannidis, who claim that “[t]here is only rule of law if the law is generally and widely 
74
 Ibid.
75
 T rebilcock, Daniels, Rule Of Law Reform And Development: Charting the Fragile Path of 
Progress (2008), p. 29.
76
 Ibid.
77
 Kennedy, A Critique of Adjudication (1997), p. 13.
78
 Ibid.

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observed and is effective in actually guiding the conduct of persons, both in their official 
capacities (if they have them) and as private persons”.
79
 This is, in their view, the “gener-
ally agreed core, minimum element of the rule of law, whatever else it might additionally 
require”.
80
 On this basis, the authors develop the concept of “systemic deficiencies” in 
the rule of law, which focuses on “persistent, cross-sector institutional weaknesses, rather 
than government heavy-handedness”,
81
 pointing to insufficiencies in the administrative 
and judicial systems of certain European countries in this regard. In particular, they cite 
breakdowns in public order, corruption, excessively lengthy judicial proceedings, non-ex-
ecution of judgments, organised crime and administrative insufficiencies in Greece, Italy, 
Romania and Bulgaria as examples of such systemic deficiencies.
82
In addition to these developments in legal studies, the use of the rule of law in the in-
stitutional sense has also become frequent in social sciences and in particular economics, 
with many studies routinely referring to it without actually providing a definition. The 
focus on institutions, including formal rules of law, and their role in improving econom-
ic performance is, in fact, the foundation of an entire branch of economic theory, known 
as “new institutional economics”, often associated with the Nobel prize winner Douglass 
C North.
83
 Many economic studies and publications today refer to the rule of law as a 
matter of routine, especially in tracking the relationship between institutional conditions 
and economic growth.
84
 In this context, the rule of law is typically related to economic 
rights, notably property rights, contract rights and enforcement.
85
 Economic perspec-
tives do not neglect the individual rights aspect of the rule of law, because the protection 
of economic interests through law presupposes basic legal certainty and personal safety. 
However, they tend to associate its meaning with the extent to which various legal rules 
and systems manage to regulate behaviour and consequently induce or hinder economic 
development. Indeed, there appears to be an emerging consensus that “institutions” are 
a vital ingredient of encouraging economic growth, and that law and legal institutions 
have a key role in this regard.
86
79
 V on Bogdandy , Ioannidis, Systemic Deficiency in the Rule of Law: What It Is, What Has Been Done,  
What Can Be Done (2014), p. 63.
80
 Ibid.
81
 Ibid., p. 61.
82
 Ibid., pp. 76–81.
83
 North, Institutions, Institutional Change and Economic Performance (1990).
84
 E.g. Cross, Law and Economic Growth (2002), p. 1737; Rigobon, Rodrik, Rule of Law, Democracy, 
Openness, and Income: Estimating the Interrelationships (2005), p. 533.
85
 E.g. Dam, The Law-Growth Nexus: The Rule of Law And Economic Development (2006), 
p. 13; Cross, Law and Economic Growth (2002), p. 1742.
86
 Ulen, The Role of Law in Economic Growth and Development (2011) p. 211.

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Andrej Auersperger Matić – Two Concepts of the Rule of Law
3.2. International Development
Over the last three decades, the discourse of international development has embraced 
the idea of the rule of law wholeheartedly, as a universally recognisable ideal intended to 
address broadly the many problems of low trust and disorder in transitional and devel-
oping societies.
87
 A 2004 report of the United Nations Secretary-General, for instance, 
defined the rule of law as
“[A] principle of governance in which all persons, institutions and entities, public 
and private, including the State itself, are accountable to laws that are publicly 
promulgated, equally enforced and independently adjudicated, and which are con-
sistent with international human rights norms and standards.”
88
The principle requires “measures to ensure adherence to the principles of supremacy 
of law, equality before the law, accountability to the law, fairness in the application of the 
law, separation of powers, participation in decision-making, legal certainty, avoidance 
of arbitrariness and procedural and legal transparency”.
89
 The definition is broad and 
imprecise, so it might rather be seen as a wish list of political objectives such as account-
ability or fairness rather than a legal postulate. The definition covers the accountability 
of both public and private actors, emphasising legality and the observance of law in 
general. It inter alia serves as the basis for many activities of the United Nations and its 
bodies, which, according to a 2011 report, provide rule of law assistance in over 150 
member states spanning every region of the world.
90
 These activities take place in all con-
texts, including development, fragility, conflict and peacebuilding. They are coordinated 
and supported by various bodies such as the “Rule of Law Coordination and Resource 
Group”, established in 2006, which seeks to ensure coordination and coherence among 
the many United Nations entities engaged in the rule of law activities, develop sys-
tem-wide strategies, and the “Rule of Law Unit”, a department of experts dedicated to 
this issue.
91
A more instrumental understanding of the rule of law was developed by the World 
Bank, as one of the international organisations most active in development and related 
87
 Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge (2006), pp. 
3–13; Humphreys, Theatre of the Rule of Law (2010), pp. 3–14.
88
 United Nations, Report of the Secretary-General, The Rule of Law and Transitional Justice in 
Conflict and Post-Conflict Societies (2004), UN Doc S/2004/616, para 6.
89
 Ibid.
90
 United Nations, Report of the Secretary-General – Uniting our strengths: Enhancing United 
Nations support for the rule of law (2006), UN doc A/61/636–S/2006/980, p. 3; United Nations, 
Report of the Secretary-General -Strengthening and coordinating United Nations rule of law activ-
ities (2011) UN doc A/66/133, p. 3.
91
 United Nations, Report of the Secretary-General – Uniting our strengths: Enhancing United 
Nations support for the rule of law (2008), UN doc A/63/226.

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policy work worldwide. Over the years, the World Bank became known for its techni-
cal approach to the shaping of the rule of law debate, which arose in the context of the 
need to deal with institutional problems in the process of providing loans for economic 
development. The World Bank accordingly began to engage in issues concerning “gov-
ernance” in borrowing countries, notably by looking at the role of law in the protection 
of rights, on the assumption that the existence of functioning legal institutions is one of 
the most important factors contributing to growth. The World Bank thus began to use 
the concept of “the rule of law”, which it interpreted in light of its overall objective of 
promoting social and economic development.
92
 In 1994 its General Counsel, Ibrahim 
Shihata, wrote an influential paper in which he distinguished the rule of law from politi-
cal decision-making by defining it as a “system based on abstract rules which are actually 
applied and on functioning institutions which ensure the appropriate application of such 
rules”
93
 and noting that economic reforms cannot be effective in the absence of a “sys-
tem” which translates them into workable rules and makes sure they are complied with. 
In his view, such a system assumes that:
“a) there is a set of rules which are known in advance, b) such rules are actually 
in force, c) mechanisms exist to ensure the proper application of the rules and to 
allow for departure from them as needed according to established procedures, d) 
conflicts in the application of the rules can be resolved through binding decisions 
of an independent judicial or arbitral body and e) there are known procedures for 
amending the rules when they no longer serve their purpose.”
94
This understanding of the rule of law is remarkable for its technical character and the 
lack of any reference to substantive values. Its aim appears to be primarily to improve the 
working of the law in the pursuit of economic development, and its main preoccupation 
is accordingly the existence and enforcement of rules, including mechanisms of dispute 
resolution. The World Bank’s understanding of the rule of law became more nuanced 
and specific after 2000, when it was defined to include the requirements of transparent 
legislation, fair laws, predictable enforcement and accountable governments to maintain 
order, promote private sector growth, fight poverty, and have legitimacy.
95
 The definition 
thus became less technical, but the focus on the functional qualities of the legal system 
has remained.
96
 The emphasis is now on the link between the rule of law, economic 
growth and the reduction of poverty, and in terms of substance, the definition expressly 
92
 Santos, The World Bank’s Uses of “Rule of Law” Promises in Economic Development (2006).
93
 Shihata, The World Bank Legal Papers (2000), p. 272.
94
 Ibid., p. 273.
95
 The World Bank, Legal Vice Presidency, ‘Initiatives in Legal and Judicial Reform’ (World Bank 
2002) 3.
96
 The World Bank, Legal Vice Presidency, ‘Legal and Judicial Reform: Strategic Directions’ (World 
Bank 2003) 1.

27
Andrej Auersperger Matić – Two Concepts of the Rule of Law
associates the rule of law with meaningful and enforceable laws, enforceable contracts, 
basic security and access to justice.
97
A broad and mainly instrumental understanding of the rule of law of this kind is 
also typical of international organisations and other actors that seek to promote legal-
ity and institutional development, both in developed and developing countries.
98
 The 
most important case in point are the frequent uses of the rule of law in the course 
of legal development projects conducted by international organisations, governments 
and non-governmental entities, such as the United States Agency for International 
Development (USAID), the Swiss Agency for Development and Cooperation (SDC), 
the British Department for International Development (DFID), the World Bank, the 
International Monetary Fund (IMF), the Organization for Security and Co-operation 
in Europe (OSCE) or the Open Society Institute. These organisations typically seek to 
advance several goals in their activities related to law and justice, with the common ob-
jective usually named as “strengthening the rule of law” in some form.
99
 Experts in the 
field have, however, complained that organisations involved in the rule of law efforts do 
not have a clear idea about what they mean exactly by that phrase, and as a consequence, 
what it is that they want to achieve and how.
100
 Indeed, referring to the rule of law in 
the context of development has become something of an “orthodoxy”, often based on 
“myths” about Western legal systems rather than clear models.
101
According to OSCE, for instance, the “rule of law is not merely a formal legality 
but justice based on the recognition and full acceptance of the supreme value of the 
human personality and guaranteed by institutions providing a framework for its fullest 
expression”, with democracy being its inherent element.
102
 The United States Agency 
for International Development, which carries out development projects on behalf of 
the United States government, considers the rule of law to be one of five elements that 
comprise democracy, the other four being consensus, competition, inclusion, and good 
governance.
103
 In its view, the rule of law “usually refers to a state in which citizens, 
corporations, and the state itself obey the law, and the laws are derived from democratic 
97
 The World Bank, Legal Vice Presidency, ‘Legal and Judicial Reform: Observations, Experiences, 
and Approach of the Legal Vice Presidency’ (World Bank 2002) 1-2.
98
 Magen, Morlino, Hybrid regimes, the rule of law, and external influence on domestic change 
(2009). 
99
 Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge (2006), pp. 
3–28.
100
 Ibid., p. 19.
101
 Upham, Mythmaking in the Rule-of-Law Orthodoxy, (2006).
102
 Organization for Security and Co-operation in Europe, ‘Document of the Copenhagen Meeting of 
the Conference on the Human Dimension of the CSCE’ (1990), para 2. 
103
 United States Agency for International Development, ‘Guide to Rule of Law Country Analysis: The 
Rule of Law Strategic Framework’ (2008) 5.

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consensus”.
104
 The Department for International Development, responsible for devel-
opment aid in the United Kingdom, notes in a 2014 document that “the rule of law is 
the underlying framework that underpins open and fair societies and economies, where 
citizens, businesses and civil society can prosper”.
105
 It advances five main ends, includ-
ing the demand that “public authority is bound by and accountable before pre-existing, 
clear, and known laws”, that citizens are “treated equally before the law”, that “human 
rights are protected”, that “citizens can access efficient and predictable dispute resolution 
mechanisms”, and that “law and order are prevalent”.
106
 Emphasising the institutional 
aspect, the document warns that the rule of law is not just about the law but also about 
the institutions that determine who has access to power, rights and resources.
107
 The 
Swiss Agency for Development and Co-operation (SDC) similarly bases its work on a 
1998 issues paper providing a conceptual and historical explanation of the rule of law, 
defined in broad terms as including respect for human rights, administrative reform, 
legal and judicial reform and decentralisation.
108
Statements and definitions like these remain relatively open in meaning, but one 
can nevertheless detect an emphasis on legal institutions, rights enforcement and effec-
tiveness of law as the main themes of the rule of law promotion. A guidance document 
of the European Commission makes a rather clear connection in this respect, stating 
that “rule of law programmes have usually taken as their starting point an assessment 
of state justice sector institutions, and on this basis remedies have been developed as 
to how institutional weaknesses could be addressed to ensure that the rule of law is up-
held.”
109
 This impression is corroborated by analyses of international development activ-
ities which have found that the lists of actions typically undertaken in the framework of 
the rule of law agenda mainly include actions related to the institutions of justice, such as 
the training of judges or lawyers, building of prisons and courthouses, establishment of 
management and administration systems for judiciaries, the establishment of or support 
to law faculties and lawyers’ associations, drafting of new laws, encouragement of states 
to ratify international treaties, training of the police force, assistance in public informa-
tion campaigns regarding rights, the establishment of small claims courts, public interest 
litigation, legal aid schemes and support to informal justice systems.
110
 Carothers has 
104
 Ibid., p. 5.
105
 United Kingdom Department for International Development, ‘Policy Approach to Rule of Law’ 
(2014) 2.
106
 Ibid.
107
 Ibid.
108
 Swiss Agency for Development and Cooperation, ‘The Rule of Law Concept: Significance in 
Development Co-operation’ (1998). 
109
 European Commission, ‘Support to Justice and the Rule of Law’ (2012).
110
 Hague Institute for the Internationalisation of Law, ‘Rule of Law Inventory Report, Academic Part’ 
(Discussion Paper for the High Level Expert Meeting on the Rule of Law of 20
th
 April 2007).

29
Andrej Auersperger Matić – Two Concepts of the Rule of Law
accordingly observed that reformers and consultants working in international legal de-
velopment tend to “translate the rule of law into an institutional checklist, with primary 
emphasis on the judiciary, to the extent that the terms judicial reform and rule-of-law 
reform are often used interchangeably”.
111
Much of contemporary thinking about the rule of law is therefore based on an un-
derstanding of that notion that is rather distinct from its classical expositions in legal 
and political theory and the constitutional traditions of Western democracies. Although 
it has many variations, the institutional view of the rule of law supplements the classi-
cal view with new elements that highlight institutional objectives.
112
 Significantly, the 
obligation to respect basic legal obligations is extended to private actors, so the scope 
of the concept is enlarged to cover private law relationships. It also appears that the in-
stitutional rule of law is not primarily concerned with the relations between individual 
and the state or personal rights and freedoms, but rather points to the need for the legal 
system to ensure the existence of procedures to sanction illegal conduct, with the central 
role played by judicial institutions. Most importantly, the new rule of law places a clear 
emphasis on the actual operation and availability of legal institutions, or the effectiveness 
of law in general, as the test of its existence. The new trend in the rule of law phraseology 
thus evidences an important shift in the understanding of this concept, revealing a desire 
to reshape legal and public debate about what is essential for the legitimacy of law.
4. Conclusion
The concept of the rule of law is important for legal theory and practice because it 
conveys the aspirations and ideals related to law and justice to legal professionals and the 
general public, and as such, it can be a potent source of arguments and criticisms of any 
legal system and its institutions. As Fuller has pointed out, the idea of the rule of law is 
at once descriptive and normative and at once positivistic and naturalistic. On the one 
hand, it suggests that certain principles and procedures are immanent to law and are 
recognised as such in the context of existing legal arrangements. On the other hand, it 
is assumed an ideal that is never reached, so that existing legal systems, as a rule, deviate 
from its requirements. The rule of law thus appears to lie on the crossroads of law and 
politics, premised on a conflation of the structure of law and political value judgment. 
This can probably explain why originally, in the works of authors like Dicey or Hayek, it 
had a strong political content, as a kind of natural law philosophy in the field of modern 
public law and democratic development. It sought to define, to use Hayek’s terms, “me-
ta-legal” principles that should serve as the basis of any modern legal system.
113
 Further 
111
 Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge (2006), p. 15.
112
 E.g. Palombella, The rule of law as an institutional ideal (2010), p. 3.
113
 Hayek, The Constitution of Liberty (1960), p. 206.

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theoretical developments followed this orientation with a more legalistic interpretation, 
focusing on general criteria of legitimacy of law that—with the notable exception of 
Waldronmainly accorded an ancillary role to justice and procedure. A similar focus on 
public law and rights is indeed apparent in nearly all practical applications of the rule 
of law concept in the existing constitutional and transnational legal systems in Europe.
This, however, seems to be changing. With the increased recognition of the social 
importance of law and the link between law and development, the progressively more 
complex personal and economic interactions and the creation of new regulatory regimes, 
the meaning of the rule of law has, especially in the international context, evolved in 
the direction of institutional standards that should be respected by all legal systems. The 
noticeable nuances in emphasis between the classical and contemporary versions of the 
rule of lawthe extension from public to private law concerns, the critical role of judicial 
institutions, and the change in the overall justification from moral considerations oppos-
ing undue state action to pragmatic concerns about the functioning of effective legal in-
stitutions—form the basis of the new interpretation of the rule of law. This development 
is understandable if we consider the economic and political context in which contempo-
rary legal systems operate. In industrialised societies, it is private law rights—those relat-
ing to private life, working conditions, neighbourhood relations, property entitlements 
or business practices, reflected in areas such as labour, environmental, civil and business 
law—that are of concern to most people when they think of law in everyday life, so, 
naturally, the rule of law ideal should be associated with their protection. Legal certainty 
that the rule of law is deemed to provide is also of essence to economic operators who 
must rely on predictable rules to make economic decisions possible, which is instrumen-
tal in the promotion of economic growth. The extension of the scope of the rule of law to 
private actors is especially convincing if we take into account that economic actors now 
have considerable power to influence social relations, a power that can perhaps even be 
compared—in terms of impact on individuals’ rights—to the role of public authorities 
in past centuries. Most importantly, private law—for instance through the mechanisms 
of contract and property law—actually reflects the fundamental values of dignity and au-
tonomy in the same sense as public law.
114
 Thus, private law and the rule of law “are not 
strangers”, but rather embody the same values and protect against the same ills, namely 
arbitrariness of human conduct.
115
New perspectives on the rule of law emphasise the enforcement of rights and the 
availability of legal remedies as key criteria of legitimacy, which makes perfect sense. 
It is no coincidence that the rule of law as an expression is often understood—at least 
implicitly—in terms of the legal process and the working of judicial institutions, either 
directly, in references to “accessible justice” or “functioning of the judiciary”, or through 
114
 Lucy, The Rule of Law and Private Law (2014), p. 62.
115
 Ibid., p. 66.

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Andrej Auersperger Matić – Two Concepts of the Rule of Law
more indirect terms, as “enforcement of contract and property rights”. The resolution of 
civil disputes, involving issues such as simple debt collection, enforcement of contracts or 
protection of property claims, forms the oldest and perhaps the most visible feature of a 
legal system, and in many ways, it is the state of these simple proceedings that can serve 
as the litmus test for any rule of law analysis. The fact that the complex rules of civil and 
business relations of modern society are ultimately enforced by courts only adds weight 
to that argument. It can thus be said that the effectiveness of law and the effectiveness 
of justice are rightly the Leitmotiv of the contemporary rule of law discourse. The search 
for adequate institutional solutions for the pressing problem of judicial effectiveness can 
therefore also proceed by invoking the rule of law as a fundamental principle that also 
covers and applies to questions of institutional competence.
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Andrej Auersperger Matić
Dve razumevanji vladavine prava
Vladavina prava je danes eden od ključnih pojmov v mednarodnih odnosih in predmet 
ostrih javnih polemik v številnih državah. Gre za pravni in politični ideal, s katerim 
običajno zagovarjamo večje priznanje prava in pravnih ustanov v moderni družbi. Do 
tega razvoja prihaja ne glede na dejstvo, da je tako v pravnem kot tudi političnem smislu 
vsebina tega pojma izrazito nejasna in se lahko zelo razlikuje glede na kontekst. Za boljše 
razumevanje dilem pri interpretacijah vladavine prava avtor predlaga razlikovanje med 
tradicionalnim pojmovanjem, ki mu lahko rečemo ustavno, in novejšim pojmovanjem, 
ki bi ga lahko najlažje označili kot institucionalno. Klasično pojmovanje vladavine prava 
jo razume predvsem kot ustavno načelo, ki na splošno izraža liberalne poglede na prim-
erno razmerje med pravom, posameznikom in moderno ustavno državo. V zadnjih nekaj 
desetletjih pa smo zlasti v mednarodnem kontekstu priča tudi nastanku drugačnega, 
splošnejšega in empiričnega razumevanja tega izraza, predvsem v povezavi delovanjem 
pravnih institucij. Sklicevanje na to vrsto vladavine zaznamujejo vprašanja o tem, ali 
pravo deluje v praksi, ne le med posameznikom in državo, temveč tudi v razmerjih med 
posamezniki. Ta različica vladavine prava se pogosto povezuje z delovanjem pravosodja 
in s postopki za reševanje sporov. Institucionalni pogled na vladavino prava lahko zato 
koristno dopolni klasične poglede z vidiki, ki poudarjajo institucionalne cilje v javnem 
diskurzu o legitimnosti prava.
Ključne besede: vladavina prava, ustavna načela, teorija prava, mednarodne organizaci-
je, učinkovitost pravosodja.

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Andrej Auersperger Matić
Two Concepts of the Rule of Law
The rule of law is today one of the leading notions in international relations and an ob-
ject of intense public debate in many countries. As a legal and political ideal, it is invoked 
to argue for greater recognition of law and legal institutions in modern society. This is 
happening even if there is no generally accepted understanding of what it actually is in 
either political or legal terms, and its meaning can differ considerably depending on the 
social and geographical environment. To facilitate the contemporary rule of law debate, 
this article proposes a primary distinction between what might be termed classical and 
institutional interpretations of this concept. It is suggested that under the classical view, 
the rule of law is understood as a constitutional principle, broadly expressing liberal 
doctrines on the proper relationship between law, the individual and the modern consti-
tutional state. In the last few decades, however, we have also witnessed, especially in the 
international context, the appearance of another, more general and empirical usage of the 
term, applied mainly in relation to the working of legal institutions. References to the 
rule of law of this kind are characterised by questions about whether and how law works 
in practice, not just in relation to the state but also in relations between individuals. 
This version of the rule of law is often strongly associated with the working of judicial 
institutions and dispute resolution procedures. The institutional view of the rule of law 
therefore helpfully supplements the classical view with new elements that highlight insti-
tutional objectives in legal and public discourse about the legitimacy of law.
Keywords: rule of law, constitutional principles, legal theory, international organisa-
tions, effectiveness of justice.