Rule of Law and Constitutionalism: Judicial Independence, Judicial Review, and Distinguishing Rule of Law from Autocracy
A.V. Dicey’s (1885) concise formulation of “Rule of Law”: equality before the law (including government officials); no punishment except for legal reasons; constitutional rights derived from judicial decisions (rather than government grants). The fundamental distinction from “Rule By Law” (law as governmental governance tool): under genuine rule of law, law constrains the rulers themselves, not merely the governed.
## Judicial Review: Institutional Guarantee of Rule of Law
**Judicial Review** — judiciary’s authority to review legislative laws for constitutional compliance and declare unconstitutional laws invalid — is among the most important institutional guarantees of rule of law, but with different historical paths across countries.
**US model (decentralized review)**: from the 1803 *Marbury v. Madison* case — Chief Justice John Marshall established the Supreme Court’s authority to review congressional legislation for constitutionality — not explicitly in the Constitution but established through judicial practice. **German/European model (centralized review)**: specialized Constitutional Courts (Germany’s Federal Constitutional Court, est. 1951) monopolize judicial review, capable of abstract review (without specific cases), widely adopted in post-WWII constitutional reconstruction.
## Rule of Law Erosion: Legal Mechanisms of Democratic Backsliding
Recent political science research (Levitsky and Way’s *Competitive Authoritarianism*; [V-Dem Democracy Index](https://www.v-dem.net/)) reveals a pattern: contemporary authoritarianism tends to erode democracy through legal means — appointing partisan judges to replace independent judicial institutions; amending constitutions through “democratic” procedures to remove term limits; using existing laws for selective enforcement against opposition. This “legalized authoritarianism” (lawfare) is harder to identify and resist than open coups.
