The End of the Rule of Law?

THE END OF THE RULE OF LAW?

By Raymond Wacks

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The Montréal Review, February 2026

The prospects for the rule of law were unpromising when the first edition of this book appeared. Five years later my second edition is now out—and the outlook is even gloomier.1

The actions of the Trump administration are merely the most conspicuous instances of the assault on this important value. They are accompanied by a disquieting growth in populism, authoritarianism, and extremism across the world. There is justifiable anxiety about the attenuation of liberal values, and the pressures on the stability of their institutional ramparts.

Complacency and indifference toward the protection of the rule of law play into the hands of malign influences that seek to diminish its dominion. Reactionary rhetoric and mendacious demagoguery is never far away, especially in a fractured economy. And without the rule of law to curb the abuse of power, the consequences may be calamitous. They might include first, the arbitrary exercise of power which would allow some citizens to be beyond or above the law. Retrospective laws could be freely enacted. Violations of the law might not be a matter solely for the judiciary to determine. It would, in short, create a government of men, rather than laws.

Secondly, legislation could be enacted without being accessible to all which, along with conflicts between laws, would generate uncertainty and unpredictability. The law could be contaminated by ideology and political influence, and trust in the legal system could evaporate.

Thirdly, in the absence of the rule of law’s requirements, the law could be applied unequally or by the use of subjective criteria such as social status, rank, class, political influence, physical strength, gender, wealth, creed, race, nationality, or sexual preference. Government officials, lawmakers, and judges might be immune to the authority of the ordinary law.

Fourthly, the executive would be free to meddle in the settlement of disputes: the judiciary could lose its impartiality and independence, and fall prey to pressure from the executive. Judges could decide cases according to their individual predilections. Lawyers’ arguments might be based on their personal views regarding the moral or political merits of their clients. Not everyone would enjoy equal access to the legal system through remedies regarding their rights. Criminal defendants might not be apprised of the allegations against them, or could lose the right to have their charges assessed by impartial judges.

Fifthly, the law would no longer provide a standard for the conduct of human affairs, and become particular rather than general. It could cease being openly published, prospective, comprehensible, consistent, fairly administered, and capable of being obeyed. Finally, instead of providing a stable framework in which social, political and economic relationships can operate, the law would be random and arbitrary, failing to promote order and security, respect human dignity and individual autonomy, and ensure a reliable, predictable form of justice and the protection of individual rights.

The erosion of these six intersecting principles would grievously undermine the substance and spirit of the rule of law. A legal or political order in which these constitutional values are impaired risks metamorphosis into an authoritarian society.

Why does it survive at all?

The antipathy of authoritarian governments toward the rule of law springs of course from the fetters it imposes on arbitrary power. But even democratic leaders occasionally recoil when these restraints hinder the exercise of their authority. So how may we explain their willingness to comply with the provisions of these voluntary controls?

First, there is significant advantage in adhering to a set of principles that are typically considered ‘good’. Their espousal also lends legitimacy to the government. The existence, for example, of a legal system that treats all equally, or an impartial, independent judiciary implies that the system is reasonable or even just.

Secondly, the support of citizens for a system that fosters certainty and predictability is vital. There is a reasonable expectation of stability in people’s commercial and personal lives; it empowers them to plan their future. This filters through, at least in democracies, so as to influence the government.

Thirdly, the institutions themselves generate a continuing rule of law ‘culture’ or ethos that transcends specific governments. All three branches of government internalise the standards by which they are ordered, thereby securing their persistence. Violating these norms is likely to be stigmatised as reprehensible. Fourthly, in a globalised world, attacks on the rule of law could correspondingly attract media censure, reputational damage, and even economic or diplomatic castigation.

Fifthly, there is evidence that countries that observe the norms prescribed by the rule of law are more likely to enjoy economic prosperity, attract foreign investment, and generally promote business confidence.

The revival of the rule of law in the last half century, according to Martin Krygier has three principal causes. First, its limited objectives were attractive after the Cold War, when there was a degree of ‘ideological exhaustion’. Secondly, there was a renewed confidence in the strength and suitability of Western liberal capitalism which appeared to offer hope when history was supposed to have ended—and the rule of law was perceived as the cornerstone of this achievement. Nor was there any obvious alternative. Thirdly, the rule of law’s appeal to policymakers, diplomats and technocrats was ‘instrumental, not fundamental’, and could perhaps be used to realize external, as opposed to inherent, goals.2

On the other hand, its revival may be attributable also to the zeal and investment evinced by international organizations and states fostering and bolstering the rule of law over recent decades.3 Either way, there remains a strong infatuation with the rule of law, in spite, or because, of the pressures on its future welfare.

How can it be defended?

None of these factors, even cumulatively, guarantee the survival of the rule of law. Without a resolute effort to protect it, it may not endure. But this quest is intractable unless we start with a clear idea of its meaning. Unhappily, the metamorphosis of any concept into a ritualistic incantation is usually a sign of trouble. The rhetorical misuse of the phrase is not the monopoly of politicians; it pervades international declarations and pious expressions of support for freedom, and anxiety about injustice. It also affords rebarbative regimes a convenient means by which to camouflage authoritarian control as they simultaneously flaunt and flout the values of this ideal.

Notwithstanding its contentious definition, there is a measure of agreement concerning the central elements of the rule of law. At its core it embodies a crucial check on the hegemony of arbitrary power. More abstract and less tangible than its conceptual partner, the separation of powers (whose corporeality is expressed in the discrete buildings of legislatures and courts), it is perhaps predictable that, unlike this related principle, it continues to draw disagreement and controversy.

It must be presumed that those who cherish the democratic canons of justice and human rights recognise that, in the absence of a system that complies with formal legality, these values would be, at best, precarious.

The criteria to be employed to measure compliance with the rule of law will always be controversial. The World Justice Project tests the following eight ‘factors’: (1) constraints on government powers and freedom of the press; (2) absence of corruption in the three branches of government and the military; (3) open government; (4) protection of fundamental rights; (5) order and security; (6) regulatory enforcement; (7) civil justice, including court proceedings, conducted without unreasonable delay and decisions enforced effectively; accessibility, impartiality and effectiveness of alternative dispute resolution mechanisms; and (8) criminal justice including police, lawyers, prosecutors, judges, and prison officers.4

This is a commendable, if inevitably unscientific, exercise, which (unfortunately) mixes formal and substantive principles; it provides a valuable empirical snapshot of the state of the world’s political and legal systems. It also, one hopes, encourages nations to improve their performance and shames those that fall short.

Formal Legality

It is not hard to see the attraction of the Platonic exasperation with the frustrating limitations on the exercise of political authority. Delay, disagreement, volatility and change thwart efficient government. Indeed, in the face of ideological skirmishes, there are times when one feels tempted to throw up one’s hands and affirm with Alexander Pope: ‘For forms of Government let fools contest; Whate’er is best administered is best.’

But there is no room for a Hobbesian or Schmittian political order, whiffs of which were discernible during the COVID-19 pandemic. The necessity for restrictions on power, even during a crisis springs not merely from the repugnance for the arrogant or corrupt use of power, but from a deeper sense of justice. This explains the need for such limits as the rule of law provides. Protests against injustice rarely invoke the rule of law, but they fall on stony ground when a legal order is deficient in integrity and legality.

In the book, I argue against an all-inclusive, substantive conception of the rule of law that incorporates human rights, the norms of international law on this subject, and other attractive goods. It may be a cliché, but any structure is only as sturdy as its foundation. The rule of law is the underpinning of the protection of fundamental freedom and individual rights. The thin conception that I support still packs a considerable ethical punch. It includes, inter alia, that the law be prospective, clear and relatively stable, with the need for an independent judiciary and limitations on the discretionary powers of law enforcement authorities. These are not puny moral ingredients.

It has been suggested that ‘formal legality has more in common with the idea of rule by law than with the historical rule of law tradition’, but this (wrongly) infers that the formal version is empty of moral content.

My adoption of a thin interpretation of the rule of law is not the outcome of wielding Occam’s razor (although often a salutary enterprise), but because substantive values, including human rights, are more secure when they enjoy recognition in their own right rather than from being smuggled into a fundamentally procedural ideal. Nor does its thinness leave the rule of law emaciated or stripped of moral fibre. The formal version not only contains indispensable bulwarks against arbitrary rule; it is also instrumental in promoting and defending more substantive individual rights and interests. It is therefore disingenuous to stigmatise it for its failure to deliver a cornucopia of desirable goods.

Violation Infringements of the rule of law, according to Raz, may lead to uncertainty or frustrated and disappointed expectations.5 The first occurs when the law does not enable people to predict future developments or to form definite expectations (as occurs in cases of vagueness and most instances of wide discretion). The second is the result when the appearance of stability and certainty (which encourages planning one’s life based on a reliance on the existing law) is crushed by retroactive law making or by preventing proper law enforcement, etc. The evils of uncertainty open the door to arbitrary power and restrictions on the ability to plan for their future.

Quite apart from the concrete harm they cause, they are also an affront to dignity by expressing disrespect for individual autonomy. The law in such cases promotes autonomous action only to frustrate its purpose. Raz compares it to entrapment: one is moved to rely on the law, and that reliance is withdrawn and occasions harm to the individual. A legal system which does, in general, observe the rule of law treats people as persons at least in the sense that it attempts to guide their behaviour through affecting the circumstances of their action. It thus presupposes that they are rational, autonomous beings.

This seems to me an important statement of the moral value of the formal account of the rule of law, and it reflects the resentment that citizens experience when the rule of law is violated. It arises a sense of fairness or reciprocity. The obligations entailed in social relationships are based on their reciprocal nature. Parties form expectations of the behaviour of others in that relationship and this gives rise to their duties towards each other. In any event, even if Raz’s formal paradigm falls short of Fullerian ‘inner morality’, it is not simply an austere, prosaic assertion that governments ought to be subservient to the law.

The Threats

In the book I identify 16 primary sources of risk to the rule of law in its formal configuration. Of these I conclude that the following pose the greatest perils to the values it exemplifies and seeks to protect:

The rise of populism;
The policies of authoritarian regimes;
The sweeping emergency powers governments assume;
The broad counter-terrorism measures adopted in certain jurisdictions;
The ideology of communitarianism;
The increasing power of Big Tech and artificial intelligence;
The scourge of corruption.

Clearly, the thicker the conception of the rule of law, the greater the potential menace. So, for example, authoritarian regimes have no compunction about infringing human rights. The fallout is thus more destructive when a substantive model is espoused.

None of the threats to the rule of law in various jurisdictions are exclusively legal in origin, nature, or methods of resolution. That is to say, the challenge of how to defend or revive the rule of law requires action that extends beyond the institutional and constitutional.

Towards Survival

Divided societies are less responsive or amenable to the spirit of the political and institutional values that are the lifeblood of the rule of law. Moreover, they are more vulnerable to the rising populism and demagoguery evident especially, but by no means solely, in Eastern Europe. A country riven by ideological, economic, or social circumstances is easy prey for totalitarian capture.

It is no simple matter to inculcate and foster an authentic acceptance of the need to contain the abuse of power by institutional mechanisms. It obviously requires time, persistence, and the political will to confront the excesses of authoritarianism and its many vices. It also requires trust in the integrity of the institutions themselves. Cynicism, suspicion and mistrust are febrile engines of anti-democratic sentiment that play into the hands of agitators and autocrats. Aided and abetted by the mischief of fake news effortlessly disseminated online, the rule of law is wounded, if not wholly extinguished.

The legislature has an essential role to play in resolving this intractable challenge. But the judiciary is in the vanguard of this battle. The aversion towards its exercising this role is typically founded on the preference for elected lawmakers. They are perceived to be ‘democratic’, whereas unelected judges are not. But this argument is misconceived. The inevitable partisan disposition of legislatures, the allegiance of politicians to their political party, and the inevitable rhetorical, if not bombastic, nature of debate and disagreement do not always make elected assemblies the ideal regulators of executive power.

There are, of course, important differences in the constitutional arrangement in various countries, especially in respect of the relationship between the executive and legislature, but, whatever the precise domestic structure, the impediments of hamstrung or hung legislatures, filibustering, and other parliamentary shenanigans obstruct their smooth operation.

The argument from democracy has, of course, natural appeal. But even if legislative bodies were genuinely representative, the case in support of their being in a stronger position than courts to protect and preserve the rule of law is, at best, uncertain. Not only are the vicissitudes of government and party politics notoriously susceptible to sectional interest and compromise, to say nothing of corruption, but it is precisely because non-elected judges are not ‘accountable’ in this manner that they are often superior guardians of liberty and legality.

Moreover, the judicial temperament, training, experience, and the forensic forum in which executive authority is tested and contested by judicial review tend to tip the scales towards their adjudicative, rather than legislative, resolution. Indeed, it is hard to see how the latter would operate in practice. Since the question under consideration is, by definition, in dispute, what role could elected parliamentarians realistically play?

The so-called ‘counter-majoritarian difficulty’ which questions the power of courts to review legislation that supposedly offends the constitution or its values was triggered in the United States by restrictive interpretations of individual rights by the Supreme Court. The present wrangle between the POTUS and the SCOTUS is unlikely to end during the incumbent’s term of office. Suffice it here to state the obvious: these assaults on the judiciary pose a serious threat to the rule of law.

Alexander Bickel’s celebrated, The Least Dangerous Branch published in 1962, urged judicial circumspection in its confrontation with the political branches of government.6 The idea developed that courts should protect the integrity of the political process and the rights of minorities. The premise of this thesis is famously challenged by Ronald Dworkin who maintains that the essence of democracy is not its majoritarian character performed by elected legislatures, but the treatment of all persons with equal concern and respect. When judges endorse this approach there is no threat to democracy.7 Jeremy Waldron repudiates this position, maintaining that since we are all morally fallible, it is preferable to listen to the moral views of elected legislators rather than those of appointed judges.8

Judges may, of course, be biased, unduly deferential, elitist, pusillanimous, corrupt, or just plain wrong. But their role is fundamental in the ‘tempering’9 of executive and legislative power. One does not need to subscribe to Dworkin’s romantic description of courts as ‘the capitals of law’s empire, and judges [as] its princes’10 to recognise the importance of the judicial function in this respect. It should be seen as operating in tandem with the legislature to curtail the excesses of executive power.

The Twilight of the Rule of Law?

The forces ranged against the rule of law cannot be casually dismissed. Their strength and tenacity are unlikely to decline; indeed, some of the other threats identified in the book could well intensify. And these dangers may be compounded by further pressure on democratic ideals. Vigilance is clearly required to ensure those who control the propagation of ideology are kept in check by the media, politicians, the public and the courts. This, of course, assumes that they have the space in which to expose repression and authoritarianism. In many cases, they do not, and international intervention may be the only means by which to restrain the autocratic exercise of power.

Freedom of expression is an essential tool against attempts to smother the propaganda deployed by despots to lure, rather than oblige, citizens into compliance. The pursuit of a moral consensus is a fundamental objective of an oppressive regime; it seeks to control, or even eradicate, opinions that run counter to this consensus. This ensures that the ‘core values’ of the state remain intact. The more these coincide with socially accepted creeds, the less relevant are the law and regulations, for the will of the people has become the will of the government and vice versa.11

The rule of law is an imperfect instrument. It can achieve only so much in the face of a concerted effort perniciously to extinguish liberty. It is disquieting to observe the proliferation of factors that place the rule of law in the firing line, and it is particularly galling to witness the use of the law to suppress or annihilate freedom in several jurisdictions around the world. ‘There is no greater tyranny’, Montesquieu warned, ‘than that which is perpetrated under the shield of the law and in the name of justice’. Fidelity to integrity, democracy and legality can never be assumed. There are worrying signs that these ideals are under siege, and stand in need of urgent invigoration and fortification.

It is hard not to plummet into platitude, yet it is important to reiterate that the institutions of government have a crucial role to play. As custodians of the rule of law, an impartial judiciary and able and independent lawyers are critical. The media’s responsibility for holding to account those who exercise power is self-evident, as is the need for civility in public debate, although the likelihood of limiting the excess of vitriol online is doubtful. Cultivating an appreciation of the value of the rule of law is vital if individuals and groups are to oppose populist or authoritarian forces that endanger the survival of this essential value.

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Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of fifteen books, several of which have been translated into more than a dozen languages, on legal philosophy, privacy, and theories of justice. He is also the co-author of five books, and editor of ten. Oxford University Press will publish the seventh edition of his Understanding Jurisprudence: An Introduction to Legal Theory in March.

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1 R Wacks, The Rule of Law Under Fire: Will it Survive? 2nd ed (Oxford, Hart Publications, 2026).

2 M Krygier, ‘The Rule of Law After the Short Twentieth Century: Launching a Global Career’ in R Nobles and D Schiff D (eds), Law, Society and Community: Essays in Honour of Roger Cotterrell (London, Ashgate, 2014), 327.

3 R Janse, ‘Why did the Rule of Law Revive?’ (2019) 11 Hague Journal on the Rule of Law (2019) 34.

4 In its 2024 report, Denmark, Norway and Finland topped the rankings. Haiti, Afghanistan, Venezuela, Cambodia and Venezuela had the lowest overall rule of law scores. It reported that between 2023 and 2024, the rule of law weakened in a majority of countries. Its overall score fell in 57 per cent of countries and improved in 43 per cent. On average, the overall score declined by 0.2 per cent. For the first time in 2020, the United States fell out of the top 20 countries. World Justice Project, Rule of Law Index, 2024 Report. See P Gowder, The Rule of Law in the Real World, Cambridge, Cambridge University Press, 2016), Chapter 9 where he evaluates the various attempts at the empirical measurement of the rule of law.

5 J Raz, ‘The Rule of Law and its Virtue’ (1977) 93 LQR 195, 222–23.

6 A Bickel, The Least Dangerous Branch:The Supreme Court at the Bar of Politics, 2nd edn (New Haven, CT, Yale University Press, 1986). See, too, his The Morality of Consent (New Haven, CT, Yale University Press, 1975).

7 R Dworkin A Matter of Principle (Cambridge, MA, Harvard University Press, 1985), 407.

8 J Waldron, Law and Disagreement (Oxford, Oxford University Press, 1999).

9 M Krygier, ‘Tempering Power’ in M Adams, A Meuwese, EH Ballin (eds), Constitutionalism and the Rule of Law (Cambridge, Cambridge University Press, 2017).

10 R Dworkin A Matter of Principle (Cambridge, MA, Harvard University Press, 1985), 407.

11 See A Monti and R Wacks, National Security in the New World Order:Government and the Technology of Information (Abingdon, Routledge, 2021).

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