The Rule of Law as an Essentially Contested Concept
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That a concept in common use, such as the rule of law, may be called essentially contested is not a criticism of that concept. Quite the contrary: “essentially contested” is a theoretical designation that draws attention to the way in which arguments about the meaning of a given concept contribute to our understanding and evaluation of the systems, practices, and actions to which the concept is applied. It is true that some conceptual contestation just bogs us down in confusion. But not always. The philosopher who can claim to have been the first to draw essential contestability to our attention—W. B. Gallie—cited the concept of democracy as one of his examples and said that a key question to ask was whether “continuous competition for acknowledgement between rival uses of the popular concept of democracy seems likely to lead to an optimum development of the vague aims and confused achievements of the democratic tradition?” If the answer is “Yes,” then democracy is an essentially contested concept and we should not despair of its use just because there is no agreement about definitions. So it is also, we can argue, with the rule of law. There are many different definitions of the rule of law and none of them can claim to be canonical. But contestation between these rival conceptions works to enrich rather than impoverish our understanding of the heritage that has been associated over the centuries with legal and political uses of the rule of law. We are in a better position to deploy the rule of law as a political ideal than we would have been had it come to us with a single uncontested definition. It is worth mentioning this at the outset because the idea of an essentially contested concept has sometimes been understood pessimistically, as an imperfection that takes us in the direction of relativism. “Essentially contested” may be taken to mean “very, very contested”—as though “essentially” were just an intensifier—a characterization that is supposed to steer clear thinkers away from the concept in question. Hopefully, we can show that this understanding is a mistake, and that drawing attention to the “essential contestedness” of the rule of law is not a reason for condemning the concept, but a way of showing how the heritage of disputation associated with it enriches and promotes some or all of the purposes for which the rule of law is cited in legal and political argument.
Source Publication
The Cambridge Companion to the Rule of Law
Source Editors/Authors
Jens Meierhenrich, Martin Loughlin
Publication Date
2021
Recommended Citation
Waldron, Jeremy, "The Rule of Law as an Essentially Contested Concept" (2021). Faculty Chapters. 1539.
https://gretchen.law.nyu.edu/fac-chapt/1539
