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 States
, 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 Korea
, Japan
, and
Hong
Kong
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 Thailand
, Cambodia
, 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 China
and Vietnam
, 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
India
, 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."
Japan
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 Delhi
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
External links
- "Economics and the Rule of Law" The Economist (2008-03-13).
- Hague Journal on the Rule of Law, includes
academic articles, practitioner reports, commentary, and book
reviews.
- International
Network to Promote the Rule of Law, United States Institute of
Peace.
- Dicey, Albert. Introduction to the Study of the Law of the
Constitution (Eighth Edition, Macmillan, 1915).
- Rule of Law Resource Center, LexisNexis
- Bingham, Thomas.
"The Rule of Law", Centre for Public Law,
Faculty of
Law, University of Cambridge
(2006-11-16).
- "The Rule of Law Inventory Report", Hague
Institute for the Internationalisation of Law (HiiL), Hague Academic Coalition
(2007-04-20).
- "UN Rule of Law, Security Officials Outline Key
Priorities for 2008", UN News Centre, United Nations (2008-01-21).
- Yu,
Helen et al. "What is the Rule of Law?", Center for International
Finance and Development, University of Iowa
(2007-08-29)
- The World Justice Project A multinational,
multidisciplinary initiative to strengthen the rule of law
worldwide
- "The
Worldwide Governance Indicators (WGI) Project", World Bank
- Movement for Rule of Law, Related to Lawyers
Movement Pakistan.