Of course, the frustration with public manipulations of the rule of law
expressed by critical analysts and thinkers such as Shklar is not new. The
noted jurist Roscoe Pound, in his entry on this topic for the renowned 1934
edition of theEncyclopedia of the Social Sciences, observed that ‘‘[o]bviously
the doctrine of the rule of law is going through a crisis analogous to that
through which it passed in the seventeenth century’’(Pound 1934 , VIII, 466 ).
As Pound well knew, this view that the rule of law might be in crisis had been
earlier expressed in Andrew Venn Dicey’s introduction to the 1915 ( 8 th)
edition of his Introduction to the Study of the Constitution in which he
observed that ‘‘[t]he ancient veneration for the rule of law in England suVered
during the last thirty years a marked decline’’ (Dicey 1915 , xxxviii). Dicey’s
pronouncement was all more notable since he had essentially coined the
locution exactly thirty years earlier in theWrst edition of that work in order
to describe what he took to be a deWning constitutional feature of the political
institutions of England.
American constitutional historians such as John Phillip Reid have argued
that whether they employed the form of words or not, the British in fact
eVectively lost the rule of law much earlier, in the late seventeenth and
eighteenth centuries, by virtue of the move to parliamentary sovereignty.
American revolutionaries, on Reid’s account as well as that of the much
earlier Pound, rejected the arbitrary power of a sovereign legislature. Instead,
they sought to reinstate the rule of law in a newly independent America on an
earlier vision of it drawn from the ‘‘fundamental’’ common law jurisprudence
of Edward Coke’sSecond Institute. This is the view of rule of law that is said to
inform both Thomas Paine’s claim that ‘‘in America, the Law is King,’’ as well
as the Massachusetts Constitution ( 1780 ), which proclaimed that its citizens
were ruled by ‘‘a government of laws, and not of men’’ ( 1780 , part I, art. 30 ).
How are we to understand this ambiguous construct ‘‘the rule of law’’
which it is often argued has been repeatedly won and lost over time and yet
today remains in the public imagination a formative part of political dis-
course, and an essential element particularly of British and American consti-
tutional discourse? And, reaching beyond the Anglo-American nexus, how
are we to understand its role within the constitutional structure of a progres-
sively more formalized European Union or within the more recently consti-
tuted post-Communist states of Eastern Europe?
It is useful to begin by considering the manner in which some contempor-
ary jurisprudential and political thinkers have considered the rule of law.
One might then consider the sources of some of those contested elements
318 shannon c. stimson