Two Models of the Rule of Law

Abstract

All conceptions of the rule of law (RoL) can be traced back to two models. The first model emphasises formal features that limit the arbitrary power of rulers. According to this model, the RoL is both a means of organising power and safeguarding those subject to it. The second model considers positive law to result from balancing two elements, dating back to the medieval tradition: gubernaculum and jurisdictio. The gubernaculum, the expression of sovereign power, finds an insurmountable limit in legal practice. Its principles govern this, which express a true ‘legal reason’. The judges and jurists are the foremost priests of this legal reason. This essay identifies the pros and cons of both models and attempts to demonstrate that they are incompatible alternatives.