Can the Rule of Law Meet the Hobbes Challenge? Democracy and the Rule of Law

This chapter argues that the rule of law ultimately depends on law being the product of, and administered under, the democratic rule of persons. The rule of law cannot escape the ‘Hobbes challenge’, whereby for law to rule requires a sovereign authority, charged with forging the law and applying it, that necessarily lies outside the law. However, for law to possess the formal and substantive qualities associated with the rule of law it must be more than the commands of a tyrant. And although even a tyranny may have an interest in governing through formal law-like rules, albeit for pernicious and often evil ends, they cannot be counted on to always do so. Only a democratic process incorporates a non-dominating form of ruling that possesses an intrinsic as well as an instrumental respect for upholding rule through duly made and administered law.