comprising it, andWnally consider how and when it might yet be said to
succeed or fail to accomplish the goals expected toXow from its application.
1 Formal Standards for Rule of Law
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Contemporary writers often reject the notion that law is obeyed simply by the
bare fact of its being ‘‘law’’—in the form of a recognized exogenous restric-
tion antecedent to action. It is, of course, entirely possible for individuals and
groups to desire and to undertake action that is both orderly and predictable
in the absence of any preexisting norm. What then might it mean to say that
people are ruled by law? The answer is certainly not without ambiguity. More
than one commentator has criticized the concept as being ‘‘uncertain and
controversial’’ in its origins, content, and application (Waldron 2002 , 140 ).
Indeed, wisdom has been seen in admitting from the outset that in our eVorts
to clarify this concept we stand on a slippery slope, covered with ‘‘the grease
of jurisprudential ambiguity and the treacherous underfooting of imprecise
deWnition’’ (Reid 2004 , 3 ). Part of the ambiguity might be reXected in the
diVering methods—philosophical, historical and institutional, and rational
choice—currently employed to interpret and evaluate this locution.
Formally, the rule of law is often characterized as if it comprised rules of a
game applied to everyone, serving to regulate most if not all forms of social,
political, and economic activity. According to one contemporary source, we
are ruled by law on the condition that ‘‘those people who have the authority
to make, administer, and apply the rules in an oYcial capacity’’ doin fact
‘‘administer the law consistently and in accordance with its tenor.’’ The tenor
of the law then reXects at least in part those general or formal requirements
converting collections of norms or rules into law (Finnis 1980 , 270 ). Lon
Fuller enumerated what are taken to be the classic formal standards for rule of
law: generality, public promulgation, non-retroactivity, clarity and compre-
hensibility, coherence or logical consistency, feasibility, enduring, and
oYcially obeyed (Fuller 1964 , ch. 2 ). Joseph Raz has added to this list the
requirement of a hierarchical structure requiring particular rules or norms to
conform to the more general ones (Raz 1979 , 210 – 19 ). Other contemporary
legal theorists and philosophers, including John Rawls and Margaret Jane
constitutionalism and the rule of law 319