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The rule of law, also called supremacy of law, means that the law is above everyone and it applies to everyone. Whether governor or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law.

Rule of law is a general legal maxim according to which decisions should be made by applying known principles or laws, without the intervention of discretion in their application.Black's Law Dictionary page 1196 (Fifth Edition, 1979):
Rule of Law. A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a "rule," because in doubtful or unforeseen cases it is a guide or norm for their decision. The rule of law, sometimes called "the supremacy of law", provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application.
This maxim is intended to be a safeguard against arbitrary governance. The word "arbitrary" (from the Latin "arbiter") signifies a judgment made at the discretion of the arbiter, rather than according to the rule of law.

Generally speaking, law is a body of rules prescribed by the state subject to sanctions or consequences. The predominant view is that the concept of "rule of law" per se says nothing about the "justness" of the laws themselves, but simply how the legal system operates. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with a "rule of law" — a situation which may be occurring in several modern dictatorships. The "rule of law" or Rechtsstaat may be a necessary condition for democracy, but it is not a sufficient condition.

History

The rule of law is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote:


Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.


Likewise, Aristotle endorsed the rule of law, writing that "law should govern", and those in power should be "servants of the laws." The ancient concept of rule of law is to be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that under the rule of law the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion."

An allusion to the rule of law applying to the Median kingdom is found in the book of Daniel, where it is stated that not even that king can arbitrarily alter a law he has previously enacted:

The thing stands fast, according to the law of the Medes and Persians, which cannot be revoked.
(Daniel 6:12)


The supremacy of law is not an exclusively western notion. For example, it was developed by Islamic jurists before the twelfth century, so that no official could claim to be above the law, not even the caliph. However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.

In 1215 AD, a similar development occurred in England: King John placed himself and England's future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta.

Subsequently, two of the first modern authors to give the principle theoretical foundations were Samuel Rutherford in Lex, Rex (1644) and John Locke in his Second Treatise of Government (1690). Later, the principle was further entrenched by Montesquieu in The Spirit of the Laws (1748).

In 1776, the notion that no one is above the law was popular during the founding of the United States, for example Thomas Paine wrote in his pamphlet Common Sense "that in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."

Differing interpretations

Different people have different interpretations about exactly what "rule of law" means. According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings. Among modern legal theorists, most views on this subject fall into three general categories: the formal approach, the substantive approach, and the functional approach.Tamanaha, Brian. “The Rule of Law for Everyone?”, Current Legal Problems, volume 55, via SSRN (2002):
Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. But there are other views as well. Some believe that democracy is part of the rule of law.


The "formal" interpretation is more widespread than the "substantive" interpretation, and formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law. This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights. The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.

In addition to the formal and substantive interpretatations of the term "rule of law", another leading interpretation is the functional definition, which is consistent with the traditional English meaning that contrasts the "rule of law" with the "rule of man." According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of law". The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.

There are other views as well. They include the minority view that the rule of law implies a guarantee of democracy.

Status in various jurisdictions

The rule of law has been considered as one of the key dimensions that determines the quality and good governance of a country. Research, like the Worldwide Governance Indicators, defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map below.

United States

government officers of the United Statesmarker, including the President, the Justices of the Supreme Court, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government does have considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutional rights of individuals. Likewise, the judicial branch has a degree of judicial discretion, and the executive branch also has various discretionary powers including prosecutorial discretion.

Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law", and if so which one. For example, Law Professor John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria", and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.

James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course."

Asia

Many Asian cultures traditionally view good governance as rule by leaders who are benevolent and virtuous, and therefore rule of law is a governmental principle that many Asians hesitate to embrace. One study indicates that throughout East Asia, only South Koreamarker, Japanmarker, and Hong Kongmarker have societies that are robustly committed to a law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailandmarker, Cambodiamarker, and most of Asia is weak or nonexistent:

Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality.
In Thailand, the police force is an organized crime gang.
In Cambodia, judges are proxies for the ruling political party….That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia.
More likely ones are: Will the police fabricate the evidence?
Will the prosecutor bother to show up?
Will the judge fall asleep?
Will I be poisoned in prison?
Will my case be completed within a decade?


In countries such as Chinamarker and Vietnammarker, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights.

In Indiamarker, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges."

Japanmarker had centuries of tradition prior to World War II during which there were laws, but they were not a central organizing principle for society, and they did not constrain the powers of government. As the twenty-first century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.

Conferences and scholarly works

In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhimarker and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review.

The influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies. Raz's principles encompass the requirements of guiding the individual's behaviour and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz's principles are as follows:

  • That laws should be prospective rather than retroactive.
  • Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
  • There should be clear rules and procedures for making laws.
  • The independence of the judiciary has to be guaranteed.
  • The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
  • The courts should have the power of judicial review over the way in which the other principles are implemented.
  • The courts should be accessible; no man may be denied justice.
  • The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.
According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally "is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man". Dicey emphasized three aspects of the rule of law: (1) no one can be punished or made to suffer except for a breach of law proved in an ordinary court; (2) no one is above the law and everyone is equal before the law regardless of social, economic, or political status; and (3) the rule of law includes the results of judicial decisions determining the rights of private persons.

See also



Footnotes

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