SMU Law Review


This brief symposium piece on "The Rule of Law" asks the present international system a simple but urgent question. If we take seriously rule of law criteria in a single state, should we also take seriously these criteria in multistate systems? I believe we should, and for fundamentally the same reasons we take these criteria seriously in a single state. Criteria that law be promulgated, publicized, prospective, intelligible, consonant (not contradictory), consistent, possible to comply with, and congruent between what it says and how it is administered, not only ensure legal actors can fairly comply with the law but also uphold the legitimacy and efficacy of law itself. The practical consequence is that legal actors, and transnational actors in particular, are better able to predict how law will treat their activity and, in turn, will feel more comfortable engaging in that activity - activity generally considered beneficent to overall welfare like communication, travel, and trade. The central challenge is understanding how rule of law criteria migrate from a single state system to multistate systems. Different characteristics of different systems can lead to different types of rule of law dilemmas. Only by understanding the nature of these different dilemmas can we begin to craft rules to accommodate and resolve them. That is the conversation I hope to start.

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