The Rule of Law Under Siege: A Foreword

This volume of The Fletcher Forum on the rule of law could not be timelier. It addresses an elusive and surprisingly contested concept, the central premise of which is that no person is above the law, including those who govern. The concept dates back to Greek and Roman antiquity, but the term came into common usage in the nineteenth century when it was associated with the rise of liberal democracies.1 It is normally used to describe governance at the national level, but in recent years has been applied to global governance as well. It has implications for international relations in two respects: it is seen as an ideal that ought to be promoted within states and as an ideal that ought to govern relations between states.One need not look beyond the headlines to see that the rule of law is under siege at both levels.2 From one perspective, this is not necessarily a bad thing. For many years, law students have been taught that faith in the rule of law as an unqualified good is either hopelessly naive or positively malign. It is either a utopian ideal that no society lives up to-certainly not international society-or it is an instrument by which the powerful perpetuate their power at the expense of the people who are supposed to be protected by the law.While these critiques help to illuminate the fallacy that law can be separated from politics-or from the exercise of power-if taken too far, they are dangerous. At the national level, when so-called populists are undermining democratic institutions in the name of "ordinary people," abandoning the rule of law as an ideal is an invitation to arbitrary or, at worst, tyrannical governance. At the international level, when multilateral institutions and principled forms of cooperation are scoffed at, giving up on international law brings us a step closer to Thucydides' dictum that the strong do what they can and the weak suffer what they must. While critical examination of the rule of law is warranted, in this day and age we must be careful not to let healthy skepticism blind us to law's virtues.