chapter 17
...................................................................................................................................................CONSTITUTIONALISM
AND THE RULE
OF LAW
...................................................................................................................................................shannon c. stimson
The Rule of Law denotes a cluster of concepts both praised and ridiculed.
Commonly invoked across the political spectrum and on all sides of political
debate, at the very least the Rule of Law and the concept of constitutionalism
generally associated with it are seen as ‘‘essentially contested concepts’’ in the
sense in which W. B. Gallie intended that characterization to apply. That is,
they are normative concepts of suYcient complexity so as to generate con-
tinuous and independently unresolvable debate (Gallie 1956 , 167 ). 1
Some of its most supportive contemporary critics have been willing to go
further, and to suggest that Rule of Law is not simply contestable but
substantively meaningless. In this latter group, the estimable late twentieth-
century political and legal theorist Judith Shklar included herself. She lamen-
ted that ‘‘thanks to ideological abuse and general over-use,’’ the phrase ‘‘Rule
of Law’’ could be shown with relatively little diYculty to be one of those
meaningless and ‘‘self-congratulatory rhetorical devices that grace the public
utterances of Anglo-American politicians’’ (Shklar 1998 , 21 ).
1 For recent and very insightful contributions on this topic, see especially Waldron ( 2002 , 2004 ),
West ( 2001 ), and Fallon ( 1997 ).