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File:A mosaic LAW by Frederick Dielman, 1847-1935.JPG
Mosaic representing both the judicial and legislative aspects of law. Woman on throne holds sword to chastise the guilty and palm branch to reward the meritorious. Glory surrounds her head, and the aegis of Minerva signifies armor of righteousness and wisdom.[1]

The rule of law is a legal maxim encompassing legal principles that might be considered the "foundation of a civilised society"[2]. While the rule of law has been described as "an exceedingly elusive notion" [3] giving rise to a "rampant divergence of understandings"Template:Sfn a dichotomy can be identifed between two principle conceptions of the rule of law; a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgement about the "justness" of law itself, but define specific procedural attributes that the law 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.[4].

History Edit

Credit for coining of the expression "the rule of law" in modern times is usually given to A. V. Dicey [5] but development of the legal concept can be traced back through history as far as Ancient Greece.

Antiquity Edit

Template:PoliticsThe rule of law is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BCE. 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.[6]

Likewise, Aristotle endorsed the rule of law, writing that "law should govern", and those in power should be "servants of the laws."[7] 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."[8]

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 by no means an exclusively western notion: in the Chinese philosophical school of Legalism in the 3rd century BCE, Han Fei Zi articulated three principles of law, of which the first is Fa (Template:Zh), which states that laws, rather than rulers, run the state, and further that laws be written and public. Today the concept is referred to as Fǎzhì (法治); see rule of law in Chinese law.

Middle ages Edit

In Islamic jurisprudence rule of law was formulated before the twelfth century, so that no official could claim to be above the law, not even the caliph.[9] 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.[10]

Modern times Edit

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).[11]

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."[12] In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."[13]

Differing interpretations Edit

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.[14] Among modern legal theorists, most views on this subject fall into three general categories: the formal approach, the substantive approach, and the functional approach.[15][16]

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.[15] 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 interpretations 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."[16] 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".[16] The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.[16]

Many individuals and organizations have tried to come up with working definitions which provide both theoretical and pragmatic accuracy. The World Justice Project, an organization specializing in the promotion of Rule of Law, bases its definition as, consisting of 16 factors and 68 sub-factors, organized under the following set of four principles, or bands:[17]

  1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable and 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.

There are other views as well. They include the minority view that the rule of law implies a guarantee of democracy.[15]

Status in various jurisdictionsEdit

The rule of law has been considered as one of the key dimensions that determines the quality and good governance of a country.[18] 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."[18] 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.[19]

United StatesEdit

Template:Expand

File:Maprl.png
2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents have confidence in and abide by the rules of society. Colors range from green (top quartile), to yellow (middle high), orange (middle low) and red (bottom quartile).
All 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.[20] 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,[21] 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.[22] 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.[23]

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."[24]

AsiaEdit

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.[25] 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?[26]

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.[27]

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.[28] 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."[29]

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.[30]

Conferences and scholarly worksEdit

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.[31]

The influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies.[32] 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".[32] 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.[33]

See alsoEdit

FootnotesEdit

  1. Cole, John et al. The Library of Congress, page 113 (W. W. Norton & Company 1997).
  2. Council of the International Bar Association Resolution, September 2005
  3. Tamanaha, Brian Z. (2004). On the Rule of Law. Cambridge University Press. p. 9. 
  4. Craig, Paul P. (1997). "Formal and substantive conceptions of the rule of law: an analytical framework". Public Law: 467. 
  5. [[Lord Bingham |Bingham, Thomas]] (2010). The Rule of Law. London: Penguin. p. 3. ISBN 978-1-846-14090-7. 
  6. Cooper, John et al. Complete Works By Plato, page 1402 (Hackett Publishing, 1997).
  7. Aristotle, Politics 3.16: "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."
  8. Tamanaha, Brian. On the Rule of Law, page 3 (Cambridge University Press, 2004).
  9. Weeramantry, C. Justice without Frontiers, page 132 (Martinus Nijhoff Publishers 1997).
  10. U.S. National Archives.
  11. Tamanaha, Brian. On the Rule of Law, page 47 (Cambridge University Press, 2004).
  12. Lieberman, Jethro. A Practical Companion to the Constitution, page 436 (University of California Press 2005).
  13. Massachusetts Constitution, Part The First, art. XXX (1780).
  14. Shklar, Judith and Hoffman, Stanley. Political Thought and Political Thinkers, page 21 (University of Chicago Press, 1998).
  15. 15.0 15.1 15.2 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.
  16. 16.0 16.1 16.2 16.3 Stephenson, Matthew. "Rule of Law as a Goal of Development Policy", World Bank Research (2008).
  17. www.worldjusticeproject.org
  18. 18.0 18.1 Kaufman, Daniel et al. "Governance Matters VI: Governance Indicators for 1996-2006, World Bank Policy Research Working Paper No. 4280" (July 2007).
  19. "Governance Matters 2008", World Bank.
  20. Vile, John. A Companion to the United States Constitution and its Amendments, page 80 (Greenwood Publishing Group, 2006).
  21. Osborn v. Bank of the United States, 22 U. S. 738 (1824): "When [courts] are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it."
  22. Harrison, John. "Substantive Due Process and the Constitutional Text", Virginia Law Review, Volume 83, page 493 (1997).
  23. Gedicks, Frederick. "An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment", Emory Law Journal, Vol. 58, pages 585-673 (2009).
  24. Snowiss, Sylvia. Judicial Review and the Law of the Constitution, pages 41-42 (Yale University Press 1990).
  25. Chu, Yun-Han et al. How East Asians View Democracy, pages 31-32.
  26. Thi, Awzar. “Asia needs a new rule-of-law debate”, United Press International, UPIAsia.com (2008-08-14).
  27. Peerenboom, Randall in Asian Discourses of Rule of Law, page 39 (Routledge 2004).
  28. Baxi, Upendra in Asian Discourses of Rule of Law, pages 336-337 (Routledge 2004).
  29. Robinson, Simon. “For Activist Judges, Try India”, Time Magazine (2006-11-08).
  30. Green, Carl. "Japan: 'The Rule of Law Without Lawyers' Reconsidered", Speech to the Asia Society (2001-03-14).
  31. Goldsworth, Jeffrey. “Legislative Sovereignty and the Rule of Law" in Sceptical Essays on Human Rights, page 69 (Tom Campbell, Keith D. Ewing, Adam Tomkins eds. Oxford University Press 2001).
  32. 32.0 32.1 Raz, Joseph. "The Rule of Law and It's Virtue", The Law Quarterly Review, volume 93, page 195 (1977); reprinted by Culver, Keith. Readings in the Philosophy of Law, page 13 (Broadview Press, 1999).
  33. Palekar, S. Comparative Politics and Government 64-65 (PHI Learning 2009).

External linksEdit

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