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How to Write a Literature Review | Guide, Examples, & Templates

How to Write a Literature Review | Guide, Examples, & Templates

Published on January 2, 2023 by Shona McCombes .

What is a literature review? A literature review is a survey of scholarly sources on a specific topic. It provides an overview of current knowledge, allowing you to identify relevant theories, methods, and gaps in the existing research that you can later apply to your paper, thesis, or dissertation topic .

There are five key steps to writing a literature review:

A good literature review doesn’t just summarize sources—it analyzes, synthesizes , and critically evaluates to give a clear picture of the state of knowledge on the subject.

What is the purpose of a literature review, examples of literature reviews, step 1 – search for relevant literature, step 2 – evaluate and select sources, step 3 – identify themes, debates, and gaps, step 4 – outline your literature review’s structure, step 5 – write your literature review, free lecture slides, frequently asked questions, introduction.

When you write a thesis , dissertation , or research paper , you will likely have to conduct a literature review to situate your research within existing knowledge. The literature review gives you a chance to:

Writing literature reviews is a particularly important skill if you want to apply for graduate school or pursue a career in research. We’ve written a step-by-step guide that you can follow below.

Writing literature reviews can be quite challenging! A good starting point could be to look at some examples, depending on what kind of literature review you’d like to write.

You can also check out our templates with literature review examples and sample outlines at the links below.

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Before you begin searching for literature, you need a clearly defined topic .

If you are writing the literature review section of a dissertation or research paper, you will search for literature related to your research problem and questions .

Make a list of keywords

Start by creating a list of keywords related to your research question. Include each of the key concepts or variables you’re interested in, and list any synonyms and related terms. You can add to this list as you discover new keywords in the process of your literature search.

Search for relevant sources

Use your keywords to begin searching for sources. Some useful databases to search for journals and articles include:

You can also use boolean operators to help narrow down your search.

Make sure to read the abstract to find out whether an article is relevant to your question. When you find a useful book or article, you can check the bibliography to find other relevant sources.

You likely won’t be able to read absolutely everything that has been written on your topic, so it will be necessary to evaluate which sources are most relevant to your research question.

For each publication, ask yourself:

Make sure the sources you use are credible , and make sure you read any landmark studies and major theories in your field of research.

You can use our template to summarize and evaluate sources you’re thinking about using. Click on either button below to download.

Take notes and cite your sources

As you read, you should also begin the writing process. Take notes that you can later incorporate into the text of your literature review.

It is important to keep track of your sources with citations to avoid plagiarism . It can be helpful to make an annotated bibliography , where you compile full citation information and write a paragraph of summary and analysis for each source. This helps you remember what you read and saves time later in the process.

To begin organizing your literature review’s argument and structure, be sure you understand the connections and relationships between the sources you’ve read. Based on your reading and notes, you can look for:

This step will help you work out the structure of your literature review and (if applicable) show how your own research will contribute to existing knowledge.

There are various approaches to organizing the body of a literature review. Depending on the length of your literature review, you can combine several of these strategies (for example, your overall structure might be thematic, but each theme is discussed chronologically).

Chronological

The simplest approach is to trace the development of the topic over time. However, if you choose this strategy, be careful to avoid simply listing and summarizing sources in order.

Try to analyze patterns, turning points and key debates that have shaped the direction of the field. Give your interpretation of how and why certain developments occurred.

If you have found some recurring central themes, you can organize your literature review into subsections that address different aspects of the topic.

For example, if you are reviewing literature about inequalities in migrant health outcomes, key themes might include healthcare policy, language barriers, cultural attitudes, legal status, and economic access.

Methodological

If you draw your sources from different disciplines or fields that use a variety of research methods , you might want to compare the results and conclusions that emerge from different approaches. For example:

Theoretical

A literature review is often the foundation for a theoretical framework . You can use it to discuss various theories, models, and definitions of key concepts.

You might argue for the relevance of a specific theoretical approach, or combine various theoretical concepts to create a framework for your research.

Like any other academic text , your literature review should have an introduction , a main body, and a conclusion . What you include in each depends on the objective of your literature review.

The introduction should clearly establish the focus and purpose of the literature review.

Depending on the length of your literature review, you might want to divide the body into subsections. You can use a subheading for each theme, time period, or methodological approach.

As you write, you can follow these tips:

In the conclusion, you should summarize the key findings you have taken from the literature and emphasize their significance.

When you’ve finished writing and revising your literature review, don’t forget to proofread thoroughly before submitting. Not a language expert? Check out Scribbr’s professional proofreading services !

This article has been adapted into lecture slides that you can use to teach your students about writing a literature review.

Scribbr slides are free to use, customize, and distribute for educational purposes.

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A literature review is a survey of scholarly sources (such as books, journal articles, and theses) related to a specific topic or research question .

It is often written as part of a thesis, dissertation , or research paper , in order to situate your work in relation to existing knowledge.

There are several reasons to conduct a literature review at the beginning of a research project:

Writing the literature review shows your reader how your work relates to existing research and what new insights it will contribute.

The literature review usually comes near the beginning of your thesis or dissertation . After the introduction , it grounds your research in a scholarly field and leads directly to your theoretical framework or methodology .

A literature review is a survey of credible sources on a topic, often used in dissertations , theses, and research papers . Literature reviews give an overview of knowledge on a subject, helping you identify relevant theories and methods, as well as gaps in existing research. Literature reviews are set up similarly to other academic texts , with an introduction , a main body, and a conclusion .

An annotated bibliography is a list of source references that has a short description (called an annotation ) for each of the sources. It is often assigned as part of the research process for a paper .

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Law (Postgraduates)

What is a literature review?

A literature review provides a comprehensive review of the literature in a specific area of interest. It enables you to:

Importantly, a literature review sets the context for your study and provides the framework for interpreting the results of your study. A literature review, like an essay, has an introduction, body and a conclusion.

Excerpt taken from: the Learning Zone (Academic Skills), Writing a Literature Review .

Conducting a literature review

Skills for searching the literature

A good search strategy is essential to get the best results and to feel confident that you have found all relevant material for your Literature Review.

See Database search tips for helpful, timesaving tips.

Finding and searching using the most appropriate descriptor or subject heading in a database ensures you find ALL the relevant material on that topic within that database.

Keep records of where you search and what search terms you used, so you don't waste time repeating searches at a later date!

Checklist of sources for your literature review

In order to be sure you have done a really comprehensive search of the literature, here is a checklist of sources/types of information for you to use.

Books: Search the SCU catalogue and Libraries Australia which searches ALL library catalogues throughout Australia. The National Library of Australia and all the State Libraries are deposit libraries, so you can be sure you are seeing everything that has been published in Australia, including theses, reports and conference papers. Request an Inter-Library Loan for items not held at SCU. (Note: not available to offshore students.)

Electronic books: Google Books and other online book collections which are available from our eBooks collections page.

Journal literature: Use databases to find relevant scholarly articles that are unavailable without an SCU login. To find suitable databases for your area of research, see the LibGuides . Databases searches are essential to ensure that you have retrieved all relevant literature in your field. Google Scholar can also be used to locate articles.

Citation databases: e.g. Scopus and Web of Science allow you to trace the works of particular authors and provides citations to related articles. These sources provide both peer-reviewed research literature and quality web resources.

Websites of Organisations often contain useful links to other quality web resources. Find a key organisation in your subject area (government agency, nongovernmental organisation, scholarly society, research institute, professional or business association). Find their website and look for links.

Grey Literature: Unpublished source material is an essential resource for some research projects but is often extremely difficult to locate and access. See your Liaison Librarian for assistance.

'How to' books

Using mind maps

As you review books, journals and other literature, make a list of the keywords and search terms that you have used. It is often useful to list the terms that aren't useful / relevant, as well as the ones that are.

You may wish to create a mind map of all of the terms that apply to your topic before conducting your literature search. This mind map can then be used to guide your literature search, and ensure that you discuss pertinent concepts in the review itself.

This mind map and its sections can also be the subsections that you use for storing the results of your research.

Some Mind Mapping Tools Available on the Internet

Useful Sites

Southern Cross University acknowledges and pays respect to the ancestors, Elders and descendants of the Lands upon which we meet and study. We are mindful that within and without the buildings, these Lands always were and always will be Aboriginal Land.

Legal Dissertation: Research and Writing Guide

About this guide, video on choosing a topic, tools on westlaw, lexis and bloomberg, circuit splits, research methodologies, additional methodology resources, conducting a literature review, beginning research, writing style guides, citation guides, related guides.

Citation and Writing Resources

Legal Research Tutorials

Secondary Sources for Legal Research

Methods of Finding Cases

Methods of Finding Statutes

Current Awareness and Alerting Resources

Compiling State Legislative Histories

Locating International and Foreign Law Journals

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This guide contains resources to help students researching and writing a legal dissertation or other upper-level writing project. Some of the resources in this guide are directed at researching and writing in general, not specifically on legal topics, but the strategies and tips can still be applied.

The Law Library maintains a number of other guides on related skills and topics that may be of interest:

The Wells Library also maintains guides. A few that may be helpful for managing research can be found here:

Choosing a Topic

This video discusses tips and strategies for choosing a dissertation topic.

Note: this video is not specific to legal dissertation topics, but it may still be of interest as an overview generally.

The Bloomberg/BNA publication United States Law Week can be a helpful resource for tracking down the major legal stories of the day. Log into Bloomberg Law, in the big search box, start typing United States Law Week and the title will appear in the drop down menu beneath the box. This publication provides coverage of top legal news stories, and in-depth "insight" features.

If you have a general idea of the area of law you wish to write about, check out the Practice Centers on Bloomberg. From the homepage, click the Browse link in the top left-hand corner. Then select Practice Centers and look for your area of law. Practice Centers are helpful because they gather cases, statutes, administrative proceedings, news, and more on the selected legal area.

Bloomberg has other news sources available as well. From the homepage, click the Browse link in the top left-hand corner. Then select News and Analysis, then select News or Analysis, and browse the available topics.

If you know what area of law you'd like to write about, you may find the Browse Topics feature in Lexis Advance helpful for narrowing down your topic.

Log into Lexis Advance, click the Browse Topics tab, and select a topic. If you don't see your topic listed, try using the provided search bar to see whether your topic is categorized as a sub-topic within this list.

Once you click on a topic, a box pops up with several options. If you click on Get Topic Document, you'll see results listed in a number of categories, including Cases, Legislation, and more. The News and Legal News categories at the right end of the list may help you identify current developments of interest for your note. Don't forget about the filtering options on the left that will allow you to search within your results, narrow your jurisdiction, and more.

Log onto Westlaw Edge, and click on the Topics tab. This time, you won't be able to search within this list, so if you're area is not listed, you should either run a regular search from the main search bar at the top or try out some of the topics listed under this tab - once you click on a topic, you can search within its contents.

What is great about the Topics in Westlaw Edge is the Practitioner Insights page you access by clicking on a topic. This is an information portal that allows you quick access to cases, legislation, top news, and more on your selected topic.

In United States federal courts, a circuit split occurs whenever two or more circuit courts of appeals issue conflicting rulings on the same legal question. Circuit splits are ripe for legal analysis and commentary because they present a situation in which federal law is being applied in different ways in different parts of the country, even if the underlying litigants themselves are otherwise similarly situated. The Supreme Court also frequently accepts cases on appeal that involve these types of conflicted rulings from various sister circuits.

To find a circuit split on a topic of interest to you, try searching on Lexis and Westlaw using this method:

in the search box, enter the following: (circuit or court w/s split) AND [insert terms or phrases to narrow the search]

You can also browse for circuit splits on Bloomberg. On the Bloomberg homepage, in the "Law School Success" box, Circuit Splits Charts appear listed under Secondary Sources.

Other sources for circuit splits are American Law Reports (ALR) and American Jurisprudence (AmJur). These publications provide summaries of the law, point out circuit splits, and provide references for further research.

"Blawgs" or law-related blogs are often written by scholars or practitioners in the legal field. Ordinarily covering current events and developments in law, these posts can provide inspiration for note topics. To help you find blawgs on a specific topic, consider perusing the ABA's Blawg Directory or Justia's Blawg Search .

Research Methodology

Types of research methodologies.

There are different types of research methodologies. Methodology refers to the strategy employed in conducting research. The following methodologies are some of the most commonly used in legal and social science research.

Doctrinal legal research methodology, also called "black letter" methodology, focuses on the letter of the law rather than the law in action. Using this method, a researcher composes a descriptive and detailed analysis of legal rules found in primary sources (cases, statutes, or regulations). The purpose of this method is to gather, organize, and describe the law; provide commentary on the sources used; then, identify and describe the underlying theme or system and how each source of law is connected.

Doctrinal methodology is good for areas of law that are largely black letter law, such as contract or property law. Under this approach, the researcher conducts a critical, qualitative analysis of legal materials to support a hypothesis. The researcher must identify specific legal rules, then discuss the legal meaning of the rule, its underlying principles, and decision-making under the rule (whether cases interpreting the rule fit together in a coherent system or not). The researcher must also identify ambiguities and criticisms of the law, and offer solutions. Sources of data in doctrinal research include the rule itself, cases generated under the rule, legislative history where applicable, and commentaries and literature on the rule.

This approach is beneficial by providing a solid structure for crafting a thesis, organizing the paper, and enabling a thorough definition and explanation of the rule. The drawbacks of this approach are that it may be too formalistic, and may lead to oversimplifying the legal doctrine.

Comparative

Comparative legal research methodology involves critical analysis of different bodies of law to examine how the outcome of a legal issue could be different under each set of laws. Comparisons could be made between different jurisdictions, such as comparing analysis of a legal issue under American law and the laws of another country, or researchers may conduct historical comparisons.

When using a comparative approach be sure to define the reasons for choosing this approach, and identify the benefits of comparing laws from different jurisdictions or time periods, such as finding common ground or determining best practices and solutions. The comparative method can be used by a researcher to better understand their home jurisdiction by analyzing how other jurisdictions handle the same issue. This method can also be used as a critical analytical tool to distinguish particular features of a law. The drawback of this method is that it can be difficult to find material from other jurisdictions. Also, researchers should be sure that the comparisons are relevant to the thesis and not just used for description.

This type of research uses data analysis to study legal systems. A detailed guide on empirical methods can be found here . The process of empirical research involves four steps: design the project, collect and code the data, analyze the data, determine best method of presenting the results. The first step, designing the project, is when researchers define their hypothesis and concepts in concrete terms that can be observed. Next, researchers must collect and code the data by determining the possible sources of information and available collection methods, and then putting the data into a format that can be analyzed. When researchers analyze the data, they are comparing the data to their hypothesis. If the overlap between the two is significant, then their hypothesis is confirmed, but if there is little to no overlap, then their hypothesis is incorrect. Analysis involves summarizing the data and drawing inferences. There are two types of statistical inference in empirical research, descriptive and causal. Descriptive inference is close to summary, but the researcher uses the known data from the sample to draw conclusions about the whole population. Causal inference is the difference between two descriptive inferences.

Two main types of empirical legal research are qualitative and quantitative.

Quantitative, or numerical, empirical legal research involves taking information about cases and courts, translating that information into numbers, and then analyzing those numbers with statistical tools.

Qualitative, or non-numerical, empirical legal research involves extracting information from the text of court documents, then interpreting and organizing the text into categories, and using that information to identify patterns.

Drafting The Methodology Section

This is the part of your paper that describes the research methodology, or methodologies if you used more than one. This section will contain a detailed description of how the research was conducted and why it was conducted in that way. First, draft an outline of what you must include in this section and gather the information needed.

Generally, a methodology section will contain the following:

Be sure that you have clearly defined the reasoning behind the chosen methodology and sources.

Literature Review

The literature review provides an examination of existing pieces of research, and serves as a foundation for further research. It allows the researcher to critically evaluate existing scholarship and research practices, and puts the new thesis in context. When conducting a literature review, one should consider the following: who are the leading scholars in the subject area; what has been published on the subject; what factors or subtopics have these scholars identified as important for further examination; what research methods have others used; what were the pros and cons of using those methods; what other theories have been explored.

The literature review should include a description of coverage. The researcher should describe what material was selected and why, and how those selections are relevant to the thesis. Discuss what has been written on the topic and where the thesis fits in the context of existing scholarship. The researcher should evaluate the sources and methodologies used by other researchers, and describe how the thesis different.

The following video gives an overview of conducting a literature review.

Note: this video is not specific to legal literature, however it may be helpful as a general overview.

Not sure where to start? Here are a few suggestions for digging into sources once you have selected a topic.

Research Guides

Research guides are discovery tools, or gateways of information. They pull together lists of sources on a topic. Some guides even offer brief overviews and additional research steps specifically for that topic. Many law libraries offer guides on a variety of subjects. You can locate guides by visiting library websites, such as this Library's site , the Law Library of Congress , or other schools like Georgetown . Some organizations also compile research guides, such as the American Society of International Law . Utilizing a research guide on your topic to generate an introductory source list can save you valuable time.

Secondary Sources

It is often a good idea to begin research with secondary sources. These resources summarize, explain, and analyze the law. They also provide references to primary sources and other secondary sources. This saves you time and effort, and can help you quickly identify major themes under your topic and help you place your thesis in context.

Encyclopedias provide broad coverage of all areas of the law, but do not go in-depth on narrow topics, or discuss differences by jurisdiction, or include all of the pertinent cases. American Jurisprudence ( AmJur ) and Corpus Juris Secundum ( CJS ) have nationwide coverage, while the Indiana Law Encyclopedia focuses on Indiana state law. A number of other states also have their own state-specific encyclopedias.

American Law Reports ( ALR ) are annotations that synopsize various cases on narrow legal topics. Each annotation covers a different topic, and provides a leading or typical case on the topic, plus cases from different jurisdictions that follow different rules, or cases where different facts applying the same rule led to different outcomes. The annotations also refer to other secondary sources.

Legal periodicals include several different types of publications such as law reviews from academic institutions or organizations, bar journals, and commercial journals/newspapers/newsletters. Legal periodicals feature articles that describe the current state of the law and often explore underlying policies. They also critique laws, court decisions, and policies, and often advocate for changes. Articles also discuss emerging issues and notify the profession of new developments. Law reviews can be useful for in-depth coverage on narrow topics, and references to primary and other secondary sources. However, content can become outdated and researchers must be mindful of biases in articles.

Treatises/Hornbooks/Practice Guides are a type of secondary source that provides comprehensive coverage of a legal subject. It could be broad, such as a treatise covering all of contract law, or very narrow such as a treatise focused only on search and seizure cases. These sources are good when you have some general background on the topic, but you need more in-depth coverage of the legal rules and policies. Treatises are generally well organized, and provide you with finding aids (index, table of contents, etc.) and extensive footnotes or endnotes that will lead you to primary sources like cases, statutes, and regulations. They may also include appendices with supporting material like forms. However, treatises may not be updated as frequently as other sources and may not cover your specific issue or jurisdiction.

Citation and Writing Style

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What is the Rule of Law?

Introduction.

This example literature review seeks to understand how rule of law has been interpreted and described by different academic theorists in order to apply meaning to both the term itself and the concepts which it represents. It is split into three sections. First, it begins with a brief overview of why it is important to define the rule of law. Second, it briefly outlines the methodology through which a literature review of the rule of law has been conducted. Finally, in part three, these frameworks are applied to a detailed review of different theorists in an effort to understand how they interact.

Although this work mainly addresses rule of law in an English law context, it is equally applicable to other common law legal systems such as Australia, Ireland, and the USA. Consequently, examples from other jurisdictions are drawn upon where appropriate.

PART ONE: The need for a definitive definition of rule of law

The most remarkable things about the rule of law is probably the fact that very few lawyers dedicate much time to understanding what it actually is. This is despite it being a ubiquitous component of legal theory which permeates all areas of law at all times. After his retirement from service as a Supreme Court judge, Tom Bingham – arguably one of the greatest and most esteemed jurists of English law in the 20 th Century [1] – reflected that although the rule of law was an expression “constantly on peoples lips,” he was never “quite sure what it meant,” despite being one of the most senior judges in the world. [2] He further questioned whether people who used the expression were fully aware of what it meant, or whether they actually meant the same thing when they talked about it. [3] It was this conundrum which proved to be the catalyst for his seminal work “The Rule of Law.” [4]

On a literal level, the construction of the phrase ‘rule of law’ could be said to conjure up images of a political system whereby government is conducted via a series of rules which are legitimately prescribed by law. It is often invoked when lawyers are trying to add an element of special moral authority to a legal argument. This might sound simple enough, but the abstract nature of rule of law means that it is not hard to find examples of instances where the rule of law is employed in a contradictory fashion. For example, in the Florida case of Bush v Gore [5] – which decided the outcome of the 2000 US presidential election – the doctrine of rule of law was invoked by both sides in support of their respective cases. This led commentators such as Waldron to question whether the term rule of law is now so overused that it has effectively lost all meaningful utility. [6] However, there is enough contemporary reference to rule of law in legislative practice that it is impossible to write it off as an empty rhetorical flourish. Rule of law’s critical importance to English law was recently renewed by the Constitutional Reform Act 2005, which codifies adherence to the “existing constitutional principle of the rule of law” as a principle of primary legislation. [7] In contrast with Waldron’s suggestion of rule of law’s irrelevance, Craig concludes that means that “judges are not free to dismiss the rule of law as meaningless verbiage […] even if they were inclined to do so.” [8] Craig’s sentiment was underlined by Bingham. [9] However, despite attaching considerable importance to the rule of law, the Constitutional Reform Act declines to define it. This means that although the importance of the rule of law is underlined, its substance is deliberately left abstract.

PART TWO: Rule of Law as an Essentially Contested Concept

In his paper “Essentially Contested Concepts,” Gallie famously argued that key factors governing the philosophy of social sciences – for example, law, social justice, and morality – are impossible to define, meaning that one can only discuss what they actually mean by comparing contrasting interpretations. [10] Grey expands upon this, suggesting that it is impossible to define essentially contested concepts with the tools of “empirical evidence, linguistic usage, or the canons of logic alone.” [11] There is a degree of subjectivity in any such assessment. Garver set out a number of dichotomies which the average person would almost certainly recognise which outline a number of factors which one must consider when assessing any essentially contested concept:

These are all useful paradigms for investigating the meaning of rule of law. It must be noted that there is no inherent contradiction between accepting the abstract nature of rule of law on one hand, while accommodating Garver’s dichotomies on the other. For example, H.L.A. Hart described essentially contested concepts in the context of legal theory as being the best means by which a generally agreed objective of fairness can be realised, whilst still maintaining a dogmatic and rigid belief in his own personal theories of legal positivism. [13] As such, the notion of rule of law as an essentially contested concept has been adopted by the author in conducting this literature review.

PART THREE: Contrasting Definitions of Rule of law

Concepts that would be readily recognised in contemporary settings as rule of law dates back to the dawn of civilisation. In ancient Greece, Aristotle described the idea that “law should govern” above all else, including man. [14] One can only really understand the significance of this principle when it is juxtaposed against the doctrine of the divine right of kings. In 1609, King James of Scotland told Parliament that “The state of monarchy is the supremest thing upon earth, for kings are not only God's lieutenants upon earth and sit upon God's throne, but even by God himself they are called Gods.” [15] In other words, Aristotle forwarded a concept of law which was superior to everyone and everything and applied equally, whereas King James was advocating a system of law whereby arbitrary outcomes based on the whims of societies leaders were justified because he considered their authority to emanate from a higher religious power.

A.V. Dicey and Rule of Law in the Contemporary Age

The term rule of law was popularised by A.V. Dicey in 1885. In his book “An Introduction to the Study of the Law of the Constitution” [16] he stated that rule of law was one of the two main lynchpins of the UK’s uncodified constitution (alongside parliamentary sovereignty). [17] Dicey outlined three elements which he considered to comprise the meaning of the rule of law in the English context:

Dicey’s work built upon pre-existing theories, and provides a useful context for understanding subsequent developments. For example, the first of his three rules clearly borrows from clause 3 of the Magna Carta:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.” [21]

It is also evident throughout the Bill of Rights 1689, for example via the prohibition on the monarch enacting law without the consent of parliament. [22] Furthermore, historic judicial decisions such as Entick v Carrington, [23] established the notion that the members of the executive (i.e., government), are not above the law, and can only take actions against citizens which are prescribed by law.

The DNA of Dicey three principles for describing the rule of law are also clearly evident in many aspects of healthy legal systems and legal treaties. Examples include the Fifth and Sixth Amendments of the US Constitution (setting out the right to due process in legal proceedings and right to a fair trial respectively), [24] Articles 6 and 7 of the European Convention on Human Rights (i.e., the Right to a fair trial and a prohibition on retrospective punishment), [25] and Article 9 of the United Nations Universal Declaration on Human Rights (No one shall be subjected to arbitrary arrest, detention or exile). [26]

‘Thick’ and ‘thin’ rule of law

These examples show that the rule of law from a Diceyan perspective has a number of components. It demands that law is clear, equally applied to all regardless of status, and upholds human rights. In other words, writers such as Craig, Bingham and Dicey set out a vision for the rule of law whereby a neutral impartial system of governance exists with the purpose of protecting citizens from tyranny. [27] Bingham in particular invokes powerful emotive examples in support of his position. For example, during the German Nazi regime, “the transport of the persecuted minority to the concentration camp [was] the subject of detailed laws duly enacted and scrupulously observed” but should not be considered to adhere to principles of the rule of law due to the obvious gross injustice which they facilitate. [28] He further reiterated this point by arguing that “a state which savagely suppressed or persecuted sections of its people cannot in my view be regarded as observing the rule of law.” [29]

However, not all commentators agree. In essence, those who believe human rights is a vital component within the rule of law subscribe to what is generally described in the literature as ‘thick’ rule of law. This must be contrast with those who believe that law and morality should be detached when discussing the rule of law. This is generally described as ‘thin’ rule of law. Ardents of this school typically seek to avoid attaching a value judgment to law, seeing it purely as a system of arbitration rather than a vehicle for advancing civil liberties.

For example, Austin splits law and morality, suggesting that “the existence of the law is one thing; its merit or demerit is another.” [30] This means that laws which are poorly drafted, unjust or immoral adhere to the principles of the rule of law, as long as they are clearly defined. The natural conclusion of such a train of thought is to dismiss the notion that rule of law has to protect human rights and civil liberties at all. This seems counter intuitive given the influence that concepts of the rule of law has had on the development of modern democratic societies, and advances such as the right to a fair trial and a prohibition on arbitrary detention. Cottrell explains that this is because the rule of law provides the platform for the development of human rights, rather than being a means by which such concepts are introduced into society. Because of this, he argues that “there can be nothing inherently sacred about civil or political liberties.” [31]

The most renowned proponent of the ‘thin rule of law point of view is probably Raz. He reinforces the suggestion that the rule of law is a label which is limited to the management and arbitration of law alone, rather than their content. [32] He was of the opinion that “the denial of human rights, extensive poverty, racial segregation, sexual inequalities, religious persecution” and even slavery could exist within a legal system without violating the rule of law, on condition that such laws were applied uniformly and consistently. [33] Raz was at pains to stress that he was not advocating such features in a legal system. His argument was more that “the promiscuous use” of the term rule of law threatened to deprive it of any potency. [34] Craig walks a middle line, stating that “laws under which people are condemned should be passed in the correct legal manner and that guilt should only be established through the ordinary trial process.” [35] He accepts that a distinction can be made between the morality and the application of the law, but he rejects the notion that such a split is capable of resulting in a legal system which adheres to the principles of the rule of law if either component is missing. [36]

The Application of Theory to Practice

On one hand, proponents of ‘thin’ rule of law, such as Raz, discount the notion that human rights is an intrinsic element of the rule of law. Obviously, this position is disputed on conceptual grounds by the likes of Dicey and Bingham. Ironically, Dicey and Bingham were both writing about English law, where the doctrine of parliamentary sovereignty makes it difficult for the judiciary to uphold the rule of law in extreme circumstances. This becomes apparent when contrast with the US constitutional settlement.

In the decision of Marbury v Madison, the United States Supreme Court concluded that it had the right to strike down primary legislation as unconstitutional where it was considered to conflict with human rights and civil liberties guaranteed under the US Constitution. [37] The doctrine of Parliamentary Sovereignty means that nobody other than the Parliament at Westminster has the power to make or unmake laws which are enforced in the UK. [38] The absence of a written constitution means that the UK courts lack a similar mechanism to that found in the US for striking down legislation which might be considered to run contrary to the rule of law. Indeed, the supremacy of parliament is such that Wade & Forsyth assert that if the judiciary “flies too high” in challenging the authority of the legislature, “Parliament might clip their wings” by enacting new laws to curtail such powers. [39] Allan has countered such arguments by suggesting that if a legislative breach of human rights principles was sufficiently serious, then the courts would be freed from the usual confines of Parliamentary Sovereignty. [40] In fact, he asserted that the UK courts would be under an obligation to do so. [41] However, older cases such as Madzimbamuto v Lardner-Burke [42] suggest that where such a moral dilemma to present itself, the court would uphold Parliamentary Sovereignty at the expense of human rights, adopting a ‘thin’ construction of rule of law:

If Parliament chose to do [moral or unjust things] the courts could not hold the Act of Parliament invalid.” [43]

However, more recent developments such as the Human Rights Act 1998 [44] and the Constitutional Reform Act 2005 seem to suggest that there has been a constitutional shift since the Madzimbamuto decision, although modern authorities are relatively slim. At best, modern cases suggest that any such discussion about whether or not the UK courts could – or would – be prepared to challenge the supremacy of Parliament in the event of legislation which runs contrary to human rights, ergo ‘thick’ rule of law, is likely to remain academic for the foreseeable future. [45]

These might be highly conceptual situations which rarely arise in the normal interaction between citizen and state, but they are still unresolved anomalies which outline some of the challenges in identifying clear definitions and lines of demarcation for the application of the rule of law. This harks back to the manner in which the rule of law could be described as an ‘essentially contested concept.’ It is impossible to clearly define without referring to different concepts which are occasionally contradictory and ‘woolly’ around the edges. However, this should not preclude an attempt at analysis, nor should it diminish the importance of the rule of law as a guiding principle via which executive, judicial, and legislative actions can be critically appraised and assessed. In short, there is no ‘correct’ or clearly defined definition of the rule of law. One must merely be aware of the different means by which it can be construed, before tailoring it to specific scenarios where appropriate.

Bibliography

Bush v Gore , 531 U.S. 98 (2000)

Entick v Carrington [1765] EWHC KB J98

Marbury v. Madison , 5 U.S. 137 (1803)

Madzimbamuto v Lardner-Burke (1969) 1 AC 645

R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28

Legislation and Treaties

Bill of Rights 1688

Constitution of the United States of America 1789

Constitutional Reform Act 2005

European Convention on Human Rights 1950

Human Rights Act 1998

Magna Carta 1215

United Nations Universal Declaration on Human Rights 1945

Aristotle, Politics 3.16, c.f., Gless S., Vervaele J.A., “Law Should Govern: Aspiring General Principles for Transnational Criminal Justice” Utrecht Law Review 9(4), 2013

Allan T.R.S., Law, Liberty, and Justice (London: Butterworths, 1993)

Austin J., The Province Of Jurisprudence Determined (London, 1832)

Bingham T., The Rule of Law (Penguin Books, 2011)

Cotterrell R.B.M., The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Pennsylvania University Press, 1989)

Dicey A.V., “An Introduction to the Study of the Law of the Constitution” (Macmillan, 1885)

Hart H.L.A., The Concept of Law (Oxford University Press, 1961)

Raz J., The Authority of Law, Essays on Law and Morality, The Rule of Law and its Virtue (Clarendon Press, Oxford, 1979)

Trebilcock M., & Daniels R., Rule of Law Reform and Development: Charting the Fragile Path of Progress , (1 st Edition, Elgar Publishing, 2008)

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Webley L., & Samuels H., Complete Public Law: Text, Cases and Materials, (3 rd Edition, Oxford University Press, 2015)

Journal Articles and Reports

Craig P., ‘The Rule of Law’ ( Select Committee on Constitution , 2007), Appendix 5 Click here to read the full article

Gaille W.B., “Essentially Contested Concepts,” Proceedings of the Aristotelian Society Vol.56, (1956)

Garver E., “Rhetoric and Essentially Contested Arguments”, Philosophy and Rhetoric Vol.11, No.3, (1978), p.156-172

Gray J.N., “On the Contestability of Social and Political Concepts.” Political Theory, 5(3), (1977)

Waldron J., “Is the Rule of Law and Essentially Contested Concept (in Florida)?” Law and Philosophy 21 (2):137-164 (2002)

James IV of Scotland (later James I of England), Speech at Whitehall Palace 1609 Click here to read the full article

News Reports

Kennedy M., “Tributes to Lord Bingham, 'the greatest judge of our time'” The Guardian (12 th December 2010) Click here to read the full article

[1] M. Kennedy, “Tributes to Lord Bingham, 'the greatest judge of our time'” The Guardian (12 th December 2010) Click here to read the full article

[2] T. Bingham, The Rule of Law (Penguin Books, 2011), p.vii

[4] T. Bingham, The Rule of Law (Penguin Books, 2011)

[5] Bush v Gore , 531 U.S. 98 (2000)

[6] J. Waldron, “Is the Rule of Law and Essentially Contested Concept (in Florida)?” Law and Philosophy 21 (2):137-164 (2002)

[7] Constitutional Reform Act 2005, s.1(a)

[8] P. Craig, ‘The Rule of Law’ ( Select Committee on Constitution , 2007), Appendix 5 Click here to read the full article

[9] Lord Bingham, ‘The Rule of Law’ Cambridge Law Journal (2007) 66(1) pp.67-85

[10] W.B. Gaille, “Essentially Contested Concepts,” Proceedings of the Aristotelian Society Vol.56, (1956), pp.167–198.

[11] J.N. Gray, “On the Contestability of Social and Political Concepts.” Political Theory, 5(3), (1977), p.337

[12] E. Garver, “Rhetoric and Essentially Contested Arguments”, Philosophy and Rhetoric Vol.11, No.3, (1978), p.156-172

[13] H.L.A., Hart, The Concept of Law (Oxford University Press, 1961), p.156

[14] Aristotle, Politics 3.16, c.f., S. Gless, J.A. Vervaele, “Law Should Govern: Aspiring General Principles for Transnational Criminal Justice” Utrecht Law Review 9(4), 2013

[15] James IV of Scotland (later James I of England), Speech at Whitehall Palace 1609 Click here to read the full article

[16] A.V. Dicey, “An Introduction to the Study of the Law of the Constitution” (Macmillan, 1885)

[17] bid, p.39, 188-196

[18] ibid, p.188

[19] ibid, p.193

[20] ibid, p.195

[21] Magna Carta 1215, Clause 3

[22] Bill of Rights 1688, Ch 2, 1

[23] Entick v Carrington [1765] EWHC KB J98

[24] Constitution of the United States of America 1789, 5 th and 6 th Amendments

[25] European Convention on Human Rights 1950, Article 6 and 7.

[26] United Nations Universal Declaration on Human Rights, Article 9

[27] H Webley & L Samuels Complete Public Law: Text, Cases and Materials, (3 rd Edition, Oxford University Press, 2015), p.13

[28] T. Bingham The Rule of Law, (1 st Edition, Penguin, 2010), p.67

[30] J. Austin, The Province Of Jurisprudence Determined (London, 1832), p.184-85

[31] R.B.M. Cotterrell The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Pennsylvania University Press, 1989), p.61

[32] J Raz , The Authority of Law, Essays on Law and Morality, The Rule of Law and its Virtue (Clarendon Press, Oxford, 1979), p.211

[35] P. Craig, ‘The Rule of Law’ ( Select Committee on Constitution , 2007), Appendix 5 Click here to read the full article

[37] Marbury v. Madison , 5 U.S. 137 (1803)

[38] A.V. Dicey “An Introduction to the Study of the Law of the Constitution (Macmillan, 1885), p.39-40

[39] H.W.R. Wade & C. Forsyth, Administrative Law , 10th edn (Oxford: Oxford University Press, 2009), p.26

[40] T.R.S. Allan, Law, Liberty, and Justice (London: Butterworths, 1993), p.282.

[42] Madzimbamuto v Lardner-Burke (1969) 1 AC 645

[43] ibid, p.723

[44] Human Rights Act 1998

[45] R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28 at [73].

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