Rule of law
Encyclopedia
Legal maxim
A legal maxim is an established principle or proposition. The Latin term, apparently a variant on maxima, is not to be found in Roman law with any meaning exactly analogous to that of a legal maxim in the Medieval or modern sense of the word, but the treatises of many of the Roman jurists on...
that says (at least) that governmental decisions should be made by applying known principles or law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s with minimal discretion
Discretion
Discretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic.-Meanings:*"The Art of suiting action to particular circumstances"...
in their application. This maxim is used to describe certain characteristics about the proper functioning of a legal system and its relationship with political power and individuals.
Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings ... everyone is for it but have contrasting convictions about what it is."
The phrase has been used since the 17th century, but the important conceptual ideas can be traced back much further. For instance Aristotle
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...
, the philosopher of Ancient Greece
Ancient Greece
Ancient Greece is a civilization belonging to a period of Greek history that lasted from the Archaic period of the 8th to 6th centuries BC to the end of antiquity. Immediately following this period was the beginning of the Early Middle Ages and the Byzantine era. Included in Ancient Greece is the...
, said "Law should govern".
At least two principal conceptions of the rule of law can be identified: a formalist or "thin" and a substantive or "thick
Thick concept
In philosophy, a thick concept is a kind of concept that both has a significant degree of descriptive content and is evaluatively loaded. Paradigmatic examples are various virtues and vices such as courage, cruelty, truthfulness and kindness...
" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.
History
Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. DiceyA. V. Dicey
- References :...
, development of the legal concept can be traced through history to many ancient civilizations, including Ancient Greece
Ancient Greece
Ancient Greece is a civilization belonging to a period of Greek history that lasted from the Archaic period of the 8th to 6th centuries BC to the end of antiquity. Immediately following this period was the beginning of the Early Middle Ages and the Byzantine era. Included in Ancient Greece is the...
, Ancient China, ancient Mesopotamia
Mesopotamia
Mesopotamia is a toponym for the area of the Tigris–Euphrates river system, largely corresponding to modern-day Iraq, northeastern Syria, southeastern Turkey and southwestern Iran.Widely considered to be the cradle of civilization, Bronze Age Mesopotamia included Sumer and the...
, and Ancient Rome
Ancient Rome
Ancient Rome was a thriving civilization that grew on the Italian Peninsula as early as the 8th century BC. Located along the Mediterranean Sea and centered on the city of Rome, it expanded to one of the largest empires in the ancient world....
.
Antiquity
In Western philosophyWestern philosophy
Western philosophy is the philosophical thought and work of the Western or Occidental world, as distinct from Eastern or Oriental philosophies and the varieties of indigenous philosophies....
, the Ancient Greeks
Ancient Greece
Ancient Greece is a civilization belonging to a period of Greek history that lasted from the Archaic period of the 8th to 6th centuries BC to the end of antiquity. Immediately following this period was the beginning of the Early Middle Ages and the Byzantine era. Included in Ancient Greece is the...
initially regarded the best form of government as rule by the best men. Plato
Plato
Plato , was a Classical Greek philosopher, mathematician, student of Socrates, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. Along with his mentor, Socrates, and his student, Aristotle, Plato helped to lay the...
advocated a benevolent monarchy
Benevolent dictatorship
Benevolent dictatorship is a form of government in which an authoritarian leader exercises political power for the benefit of the whole population rather than exclusively for his or her own self-interest or benefit or for the benefit of only a small portion of the population...
ruled by an idealized philosopher king
Philosopher king
Philosopher kings are the rulers, or Guardians, of Plato's Utopian Kallipolis. If his ideal city-state is to ever come into being, "philosophers [must] become kings…or those now called kings [must]…genuinely and adequately philosophize" .-In Book VI of The Republic:Plato defined a philosopher...
, who was above the law. Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "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." More than Plato attempted to do, Aristotle
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...
flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law:
It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.
According to the Ancient Roman
Ancient Rome
Ancient Rome was a thriving civilization that grew on the Italian Peninsula as early as the 8th century BC. Located along the Mediterranean Sea and centered on the city of Rome, it expanded to one of the largest empires in the ancient world....
statesman Cicero
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
, "We are all servants of the laws in order that we may be free." During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus) and above the law, but those with grievances could sue the treasury.
In Ancient China, members of the school of legalism
Legalism (Chinese philosophy)
In Chinese history, Legalism was one of the main philosophic currents during the Warring States Period, although the term itself was invented in the Han Dynasty and thus does not refer to an organized 'school' of thought....
during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law. In contrast, the Huang-Lao
Huang-Lao
Huang-Lao or Huanglao was the most influential Chinese school of thought in the early 2nd-century BCE Han Dynasty, and is generally interpreted as encompassing Daoism and Legalism...
school of Daoism rejected legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
in favor of a natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
that even the ruler would be subject to.
Middle Ages
In Islamic jurisprudenceSharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
rule of law was formulated before the twelfth century, so that no official could claim to be above the law, not even the caliph
Caliph
The Caliph is the head of state in a Caliphate, and the title for the ruler of the Islamic Ummah, an Islamic community ruled by the Shari'ah. It is a transcribed version of the Arabic word which means "successor" or "representative"...
. However, this was not a reference to secular law, but to Islamic religious law
Religious law
In some religions, law can be thought of as the ordering principle of reality; knowledge as revealed by a God defining and governing all human affairs. Law, in the religious sense, also includes codes of ethics and morality which are upheld and required by the God...
in the form of Sharia law.
In 1215, a similar development occurred in England: King John
John of England
John , also known as John Lackland , was King of England from 6 April 1199 until his death...
placed himself and England's future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
.
Modern times
In a petition to James I of EnglandJames I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
in 1610, the House of Commons
House of Commons of England
The House of Commons of England was the lower house of the Parliament of England from its development in the 14th century to the union of England and Scotland in 1707, when it was replaced by the House of Commons of Great Britain...
said:
Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government....
Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford
Samuel Rutherford
Samuel Rutherford was a Scottish Presbyterian theologian and author, and one of the Scottish Commissioners to the Westminster Assembly.-Life:...
in Lex, Rex
Lex, Rex
Lex, Rex is a book by the Scottish Presbyterian minister Samuel Rutherford . The book was published in 1644, had the English subtitle of "The Law is King", and although intended to be a comprehensive defence of the Scottish Presbyterian ideal in politics, was published in response to Bishop John...
(1644). The title is Latin for "the law is king" and reverses the traditional rex lex ("the king is the law"). John Locke
John Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
also discussed this issue in his Second Treatise of Government (1690). Later, the principle was further entrenched by Montesquieu in The Spirit of the Laws
The Spirit of the Laws
The Spirit of the Laws is a treatise on political theory first published anonymously by Charles de Secondat, Baron de Montesquieu in 1748 with the help of Claudine Guérin de Tencin...
(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
Thomas Paine
Thomas "Tom" Paine was an English author, pamphleteer, radical, inventor, intellectual, revolutionary, and one of the Founding Fathers of the United States...
wrote in his pamphlet Common Sense
Common Sense (pamphlet)
Common Sense is a pamphlet written by Thomas Paine. It was first published anonymously on January 10, 1776, during the American Revolution. Common Sense, signed "Written by an Englishman", became an immediate success. In relation to the population of the Colonies at that time, it had the largest...
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
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
enshrined this principle in the Massachusetts Constitution
Massachusetts Constitution
The Constitution of the Commonwealth of Massachusetts is the fundamental governing document of the Commonwealth of Massachusetts, one of the 50 individual state governments that make up the United States of America. It was drafted by John Adams, Samuel Adams, and James Bowdoin during the...
by seeking to establish "a government of laws and not of men."
Categorization of interpretations
Different people have different interpretations about exactly what "rule of law" means. According to political theorist Judith N. ShklarJudith N. Shklar
Judith Nisse Shklar was a political theorist, and the John Cowles Professor of Government at Harvard University.-Biography:...
, "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
Legal formalism
Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
(or "thin") approach, the substantive (or "thick") approach, and the functional approach.
The "formal" interpretation is more widespread than the "substantive" interpretation. 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.
The functional interpretation of the term "rule of law", consistent with the traditional English meaning, contrasts the "rule of law" with the "rule of man
Rule of man
Rule of man is absence of rule of law. It is a society in which one person, or a group of persons, rules arbitrarily.The Sovereign exercises absolute authority and is not bound by any law, he as a person stands outside law...
." 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.
The ancient concept of rule of law can 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 is a mere tool for a government, that suppresses in a legalistic fashion."
Status in various jurisdictions
The rule of law has been considered as one of the key dimensions that determine the quality and good governanceGood governance
Good governance is an indeterminate term used in development literature to describe how public institutions conduct public affairs and manage public resources in order to guarantee the realization of human rights. Governance describes "the process of decision-making and the process by which...
of a country. Research, like the Worldwide Governance Indicators
Worldwide Governance Indicators
Based on a long-standing research program of the World Bank, the Worldwide Governance Indicators capture six key dimensions of governance between 1996 and present...
, 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, including the President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
, the Justices of the Supreme Court, and all members of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
, pledge first and foremost to uphold the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers
Enumerated powers
The enumerated powers are a list of items found in Article I, section 8 of the US Constitution that set forth the authoritative capacity of the United States Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of...
and respects the constitutionally protected rights of individuals
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. Likewise, the judicial branch has a degree of judicial discretion
Judicial discretion
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence...
, 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
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
, Augustine, Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.
James Wilson
James Wilson
James Wilson was one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence. Wilson was elected twice to the Continental Congress, and was a major force in drafting the United States Constitution...
said during the Philadelphia Convention
Philadelphia Convention
The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...
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
George Mason
George Mason IV was an American Patriot, statesman and a delegate from Virginia to the U.S. Constitutional Convention...
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." Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
(joined by Justice Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
) took a similar position in 1827: "When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law."
Asia
East Asian cultures are influenced by two schools of thought, ConfucianismConfucianism
Confucianism is a Chinese ethical and philosophical system developed from the teachings of the Chinese philosopher Confucius . Confucianism originated as an "ethical-sociopolitical teaching" during the Spring and Autumn Period, but later developed metaphysical and cosmological elements in the Han...
, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism
Legalism (Chinese philosophy)
In Chinese history, Legalism was one of the main philosophic currents during the Warring States Period, although the term itself was invented in the Han Dynasty and thus does not refer to an organized 'school' of thought....
, which advocated strict adherence to law. The influence of one school of thought over the other has varied throughout the centuries. One study indicates that throughout East Asia, only South Korea
South Korea
The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south...
, Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, Taiwan
Taiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
and Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
have societies that are robustly committed to a law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission
Asian Human Rights Commission
The Asian Human Rights Commission is an independent, non-governmental body, which seeks to promote greater awareness and realisation of human rights in the Asian region, and to mobilise Asian and international public opinion to obtain relief and redress for the victims of human rights violations...
, the rule of law in Thailand
Thailand
Thailand , officially the Kingdom of Thailand , formerly known as Siam , is a country located at the centre of the Indochina peninsula and Southeast Asia. It is bordered to the north by Burma and Laos, to the east by Laos and Cambodia, to the south by the Gulf of Thailand and Malaysia, and to the...
, Cambodia
Cambodia
Cambodia , officially known as the Kingdom of Cambodia, is a country located in the southern portion of the Indochina Peninsula in Southeast Asia...
, 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
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
and Vietnam
Vietnam
Vietnam – sometimes spelled Viet Nam , officially the Socialist Republic of Vietnam – is the easternmost country on the Indochina Peninsula in Southeast Asia. It is bordered by China to the north, Laos to the northwest, Cambodia to the southwest, and the South China Sea –...
, 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. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.
In India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
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
Harish Khare
Harish Khare is Media Advisor at the Indian Prime Minister's . He has worked as Resident Editor and chief of bureau with The Hindu in New Delhi, India. The Hindu, is widely considered India's left leaning and most respected broadsheet...
, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges."
Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
had centuries of tradition prior to World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, 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 21st 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.
Organizations and scholarly works
Many organizations and scholars have advocated for the rule of law and have taken positions regarding the interpretation of that concept they prefer.International Commission of Jurists
In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New DelhiNew Delhi
New Delhi is the capital city of India. It serves as the centre of the Government of India and the Government of the National Capital Territory of Delhi. New Delhi is situated within the metropolis of Delhi. It is one of the nine districts of Delhi Union Territory. The total area of the city is...
and speaking as the International Commission of Jurists
International Commission of Jurists
The International Commission of Jurists is an international human rights non-governmental organization. The Commission itself is a standing group of 60 eminent jurists , including members of the senior judiciary in Australia, Canada, and South Africa and the former UN High Commissioner for Human...
, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi
Declaration of Delhi
The New Delhi Congress or Declaration of Delhi was an international gathering of over 185 judges, lawyers, and law professors from 53 countries all over the world, united as the International Commission of Jurists that took place in New Delhi, India in 1959. The theme of the New Delhi Congress was...
. 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
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
.
United Nations
The Secretary-General of the United Nations defines the rule of law as:
a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountabilityAccountabilityAccountability is a concept in ethics and governance with several meanings. It is often used synonymously with such concepts as responsibility, answerability, blameworthiness, liability, and other terms associated with the expectation of account-giving...
to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions. The Security Council has held a number of thematic debates on the rule of law, and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security, children in armed conflict, and the protection of civilians in armed conflict. The Peacebuilding Commission
Peacebuilding Commission
The Peacebuilding Commission was established in December 2005 by the United Nations General Assembly and the Security Council acting concurrently...
has also regularly addressed rule of law issues with respect to countries on its agenda. The Vienna Declaration and Programme of Action
Vienna Declaration and Programme of Action
The Vienna Declaration and Programme of Action, also known as VDPA, is a human rights declaration adopted by consensus at the World Conference on Human Rights on 25 June 1993 in Vienna, Austria...
also requires the rule of law be included in human rights education
Human rights education
Human rights education is the teaching of the history, theory, and law of human rights in schools and educational institutions, as well as outreach to the general public.-Human rights education and the United Nations:...
.
International Bar Association
The Council of the International Bar AssociationInternational Bar Association
The International Bar Association is an international association of lawyers and lawyers' associations. The IBA's stated purpose is to promote an exchange of information between legal associations worldwide, support the independence of the judiciary and the right of lawyers to practice their...
passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.
World Justice Project
As used by the World Justice ProjectWorld Justice Project
-Mainstreaming:The World Justice Project holds action-oriented meetings with leaders from a range of fields to mainstream rule of law advancement and make strengthening the rule of law as fundamental to the thinking and work of all professionals as it is to lawyers...
, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld:
1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property;
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law —such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice.
Albert Dicey
British jurist A. V. DiceyA. V. Dicey
- References :...
popularized the phrase "rule of law" in 1885. Dicey emphasized three aspects of the rule of law :
- No one can be punished or made to suffer except for a breach of law proved in an ordinary court.
- No one is above the law and everyone is equal before the law regardless of social, economic, or political status.
- The rule of law includes the results of judicial decisions determining the rights of private persons.
Joseph Raz
In 1977, the influential political theorist Joseph RazJoseph Raz
Joseph Raz is a legal, moral and political philosopher. He is one of the most prominent advocates of legal positivism. He has spent most of his career as professor of philosophy of law and a fellow of Balliol College, Oxford, and simultaneously as professor of law at Columbia University Law...
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
Friedrich Hayek
Friedrich August Hayek CH , born in Austria-Hungary as Friedrich August von Hayek, was an economist and philosopher best known for his defense of classical liberalism and free-market capitalism against socialist and collectivist thought...
and E. P. Thompson
E. P. Thompson
Edward Palmer Thompson was a British historian, writer, socialist and peace campaigner. He is probably best known today for his historical work on the British radical movements in the late 18th and early 19th centuries, in particular The Making of the English Working Class...
. Some of Raz's principles are as follows:
- That laws should be prospectiveProspectiveProspective literally means "looking forward". It can also refer to an event that is likely or expected to happen in the future. For example, a prospective student is someone who is considering attending a school — typically a high school student who is seriously considering applying to a...
rather than retroactiveEx post facto lawAn ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
. - 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 reviewJudicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
over the way in which the other principles are implemented. - The courts should be accessible; no man may be denied justiceJusticeJustice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
. - The discretionDiscretionDiscretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic.-Meanings:*"The Art of suiting action to particular circumstances"...
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".
In relation to economics
One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without an answer to the question: does the rule of law matter for economic development or not? Constitutional economicsConstitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption
Political corruption
Political corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
of the judiciary: corruption by the executive branch, in contrast to corruption by private actors.
The standards of constitutional economics can be used during annual budget process
Budget process
A budget process refers to the process by which governments create and approve a budget, which is as follows:* The Financial Service Department prepares worksheets to assist the department head in preparation of department budget estimates...
, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society
Civil society
Civil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor.
The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. To date, the term “rule of law” has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy.
In conflict with natural law
Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural lawNatural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
but not statutory law. Heidi M. Hurd raises the example of a battered woman who rightly believes that there is a strong probability that her husband will eventually attempt to kill her and her children unless she preemptively
Preemptive strike
A preemptive strike refers to a surprise attack launched with the stated intention of countering an anticipated enemy offensive. Preemptive strike may also refer to:...
kills him. If the law does not permit the acquittal of those who claim self-defense
Self-defense
Self-defense, self-defence or private defense is a countermeasure that involves defending oneself, one's property or the well-being of another from physical harm. The use of the right of self-defense as a legal justification for the use of force in times of danger is available in many...
in the absence of an imminent threat
Imminent threat
Hugo Grotius, the 17th century jurist and father of public international law, stated in his 1625 magnum opus The Law of War and Peace that "Most Men assign three Just Causes of War, Defense, the Recovery of what's our own, and Punishment."...
of harm, then the woman must be punished, or "what will become of the rule of law? For law seemingly ceases to be law if judges are entitled to rethink its wisdom in every case to which it applies and to disregard it whenever it is inferior to the rule that they would fashion."
----
See also
- Legal certaintyLegal certaintyLegal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct. Legal certainty is internationally recognised as a central requirement for the rule of law....
- Sovereign immunitySovereign immunitySovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
- Equality before the lawEquality before the lawEquality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
- Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- Mob ruleOchlocracyOchlocracy or mob rule is government by mob or a mass of people, or the intimidation of legitimate authorities.As a pejorative for majoritarianism, it is akin to the Latin phrase mobile vulgus meaning "the fickle crowd", from which the English term "mob" was originally derived in the...
- Violent non-state actor
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- JudiciaryJudiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
- Separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
- Civil societyCivil societyCivil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
- Nuremberg PrinciplesNuremberg PrinciplesThe Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...
- Public interest litigationPublic interest litigationIn Indian law, Public Interest Litigation OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party...
- RechtsstaatRechtsstaatRechtsstaat is a concept in continental European legal thinking, originally borrowed from German jurisprudence, which can be translated as "legal state", "state of law", "state of justice", or "state of rights"...
- Rule According to Higher LawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- State secrets privilegeState Secrets PrivilegeThe state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
External links
- 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 PeaceUnited States Institute of PeaceThe United States Institute of Peace was created by Congress as a non-partisan, federal institution that works to prevent or end violent conflict around the world...
. - Rule of Law Resource Center, LexisNexisLexisNexisLexisNexis Group is a company providing computer-assisted legal research services. In 2006 it had the world's largest electronic database for legal and public-records related information...
- Bingham, Thomas. "The Rule of Law", Centre for Public Law, Faculty of Law, University of CambridgeFaculty of Law, CambridgeThe Faculty of Law at the University of Cambridge is one of the faculties at the Sidgwick Site. The building opened in 1996 and was designed by Norman Foster, who also designed the terminal building at Stansted Airport and 30 St Mary Axe...
(2006-11-16). - "The Rule of Law Inventory Report", Hague Institute for the Internationalisation of Law (HiiL), Hague Academic CoalitionHague Academic Coalitionis a consortium of academic institutions in the fields of international relations, international law and international development.-Members and Organization:The member institutions are:* Carnegie Foundation*...
(2007-04-20). - The World Justice Project A multinational, multidisciplinary initiative to strengthen the rule of law worldwide.
- World Justice Map Map-based information exchange platform facilitating networking among Rule of Law promoters globally.
- "Understandings of the Rule of Law in various Legal Orders of the World", Wiki-Project of Freie Universitaet Berlin.
- Eau Claire County Bar Association rule of law talk
- Frithjof Ehm "The Rule of Law: Concept, Guiding Principle and Framework"