Rule by Law or Rule of Law?

This article examines some aspects of the distinction between the rule of law and rule by law, elucidating those concepts by focusing on their role in political systems with a dominant political party. After criticizing accounts in which the rule of law serves some instrumental purposes of the dominant party, such as promoting foreign investment, the article turns to more normative accounts of the rule of law. Drawing on American Legal Realism, it argues that standard components of the rule of law such as coherence and intelligibility do impose some normative constraints on dominant party behavior. Examining the concept of intelligibility in more detail, though, shows that those constraints are relatively weak, and depend importantly on the views prevailing in the legal profession about what a decision according to law is.