The Rule of Law in the ‘New Regulatory State’

Abstract

This article examines the apparent mismatch between standard accounts of the rule of law and those contemporary modes of governance which are said to confound hierarchical understandings and emphasize ‘responsive’ techniques of regulation. It argues that rule of law ‘side-liners' and rule of law ‘hard-liners' have both tended to overstate and misunderstand the challenges presented to the ideal by contemporary regulatory environments. While the set of concerns underpinning the historical development of the rule of law ideal have not been shown to be irrelevant, the general thrust of many of the techniques of the so-called ‘new regulatory state’ do potentially threaten the idea that governance should be rendered calculable by reference to generally applicable rules or principles. This should have consequences for our rule of law theories. In particular, it is argued that viewing the rule of law through a ‘regulatory lens' raises significant questions about the importance to be attached to the guidance function of rules. It is suggested that calculable rules may plausibly be given a more differentiated and confined (though not unimportant) role in a wider notion of the rule of law.