As we saw in Hayek`s discussion (1973), the other side of the coin is the denigration of legislation, precisely because its adoption seems obvious and undeniable to represent the rule of powerful officials. Legislation is a matter of will. The legislative process produces laws simply because a group of people in an assembly decides that a particular law should be created. And this is done by the very men – powerful politicians – in whose power the rule of law is supposed to be an alternative. My action can hardly be considered subject to the will of another person if I use his rules for my own purposes, how I could use my knowledge of a natural law, and if that person is not informed of my existence or of the particular circumstances in which the rules apply to me, or the effect they will have on my plans. White. (Hayek 1960:152) Although many jurists follow Raz 1977 and believe that the rule of law is a purely formal/procedural ideal, others believe in adding a more substantial dimension. They do not believe that it is possible to clearly separate our political ideals, as Raz seems to assume. At least the formal/procedural aspects generate some momentum in a substantive direction.
It is often said that generality – proceeding according to a rule – contains the seed of justice (Hart 1961: chap. 8). And stability, publicity, clarity and foresight indicate a fairly fundamental link between the rule of law and the conditions of freedom. However, we must be careful to distinguish between the supposedly substantive requirements of the rule of law and the specification of the deeper values that underlie and motivate the ideal also in its formal and procedural requirements. For these reasons, it is better to think of the rule of law not as a model of institutional design, but as a value or set of values that could shape that conception and can therefore be pursued in a variety of ways. Nevertheless, some fairly simple and generalizable institutional ideas stem from the idea that those who judge the legitimacy of the exercise of power should not be the same as those who exercise it. For example, a typical rule of law will institutionalize some means of protecting judicial officials from political or other interference that threatens their independence. Accordingly, the institutional separation of the judiciary from other branches of government is generally considered an important feature of rule of law. Other measures to ensure equitable access to legal institutions may also be important for rule of law regulations. Moreover, it is widely accepted that a binding written constitution supports the rule of law and has been adopted by most states around the world. Some theorists distinguish between the rule of law and what they call the rule of law (see, for example, Tamanaha 2004:3). They celebrate one thing and denigrate the other.
The rule of law should put law above politics. The idea is that the law should be above any powerful person and agency in the country. Domination by law, on the other hand, means the instrumental use of law as an instrument of political power. This means that the state uses the law to control its citizens, but never allows the law to be used to control the state. The rule of law is associated with the devaluation of legality by authoritarian regimes, for example in modern China. The American democratic system is not always based on the simple majority rule. Certain principles are so important to the nation that the majority has agreed not to interfere in these areas. For example, the Bill of Rights was adopted because concepts such as freedom of religion, freedom of expression, equal treatment and due process were considered so important that even a majority should not be allowed to change them. Ideas about the rule of law have been around since at least the 4th century BC. At the center of political and legal thought when Aristotle distinguished «the rule of law» from «that of an individual». In the 18th century, the French political philosopher Montesquieu developed a doctrine of the rule of law that pitted the legitimate authority of monarchs against the arbitrariness of despots. He has profoundly influenced Western liberal thought ever since.
This emphasis on the value of complexity—the ways in which complicated laws, particularly property laws, provide protections under which people can find shelter from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law (e.g., Thompson 1975: 258-69).