Establishing the rule of law requires two elements. First, an articulation of the concept that there is a higher law above the government from which the government derives its legitimate authority but which also constrains the exercise of that power. Second, an effective institutional structure for citizens to actually enforce the rule of law’s limits on government’s exercise of its powers in practice.

Three theories have been articulated that can meet these requirements of the rule of law: natural law, social contract theory, and a “conservative” version of the rule of law. This essay focuses on the last. Under the conservative version of the rule of law, both the legitimate authority of the government and the constraints upon it are derived from history, tradition, and the particular character of a political community. Rather than the rule of law emerging as a pre-political concept that is then implemented in practice, the conservative version of the rule of law first imposes limits on the government in practice and only later theorizes those limits into principles of constitutionalism. The logic of the conservative version of the rule of law is illustrated through a focus on the ideas of three thinkers: David Hume, Edmund Burke, and Russell Kirk.

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