You Say it Best When You Say Nothing At All: “[the Rule of Law]”

Abstract

In this paper, I consider the way that ‘the Rule of Law’ is, or is not, deployed in both theoretical conceptions and apex courts' decisions. Where many early Rule of Law conceptions did not use ‘the Rule of Law’ and contemporary Western apex courts sometimes discuss the concept without uttering the phrase, I raise a question: when talking about the Rule of Law, is it possible, and is it useful, to not invoke the phrase ‘the Rule of Law’? By exploring accounts in which the phrase is not invoked, and through considering the benefits that flow from not mentioning ‘the Rule of Law’, I illuminate the circumstances in which it is, and is not, appropriate to do so. I conclude that, where there already exists an intuitive notion of the Rule of Law, the Rule of Law can be discussed best by not mentioning ‘the Rule of Law’.