The RULE OF LAW is the legal principle that law should govern a
nation , as opposed to being governed by decisions of individual
government officials . It primarily refers to the influence and
authority of law within society, particularly as a constraint upon
behaviour, including behaviour of government officials. The phrase
can be traced back to 16th century Britain , and in the following
century the Scottish theologian
Samuel Rutherford used the phrase in
his argument against the divine right of kings .
Rule of law
* 1 History
* 1.1 Antiquity * 1.2 Middle Ages * 1.3 Early modern period
* 2 Meaning and categorization of interpretations
* 3 Status in various jurisdictions
* 3.1 Europe
* 3.1.1 United Kingdom
* 3.2 Americas
* 3.2.1 United States
* 3.3 Asia
* 4 Organizations
International Commission of Jurists
* 4.2 United Nations
International Bar Association
World Justice Project
* 4.5 The International Development
* 5 In relation to economics * 6 In relation to culture
* 7 See also
* 7.1 By jurisdiction * 7.2 Legal scholars
* 8 Notes and references * 9 Bibliography * 10 External links
Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey , development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece , China , Mesopotamia , India , and Rome .
In the West , the ancient Greeks initially regarded the best form of
government as rule by the best men.
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 Roman statesman
In China, members of the school of legalism 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 school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.
There has recently been an effort to reevaluate the influence of the
Bible on Western constitutional law. In the
In Islamic jurisprudence rule of law was formulated in the seventh
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
Alfred the Great , Anglo-Saxon King of the 9th century, reformed the
law of his kingdom and created a law code (see
Doom Book ) with the
In 1215, Archbishop
Stephen Langton gathered the Barons in England
and forced King John and future sovereigns and magistrates back under
the rule of law, preserving ancient liberties by
Magna Carta in return
for exacting taxes. This foundation for a constitution was carried
United States Constitution
In 1481, during the reign of
Ferdinand II of Aragon , the
Constitució de l\'Observança was approved by the General
EARLY MODERN PERIOD
See also: Rechtsstaat
Part of the
* Classical republicanism * Neo-republicanism
* Australia * Barbados * Canada * Ireland * Jamaica * Morocco * Netherlands * New Zealand * Spain * Sweden * Turkey * United Kingdom * United States
* v * t * e
The first known use of this English phrase occurred around AD 1500
Another early example of the phrase "rule of law" is found in a
James I of England
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....
In 1607, English Chief
Among the first modern authors to use the term and give the principle
theoretical foundations was
Samuel Rutherford in
Lex, Rex (1644). The
title, Latin for "the law is king", subverts the traditional
formulation rex lex ("the king is law").
The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.
In 1776, the notion that no one is above the law was popular during
the founding of the United States. For example,
The influence of Britain, France and the United States contributed to spreading the principle of the rule of law to other countries around the world.
MEANING AND CATEGORIZATION OF INTERPRETATIONS
The Oxford English Dictionary has defined "rule of law" this way:
The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.
Rule of law
Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion". Among modern legal theorists , one finds that at least two principal conceptions of the rule of law can be identified: a formalist or "thin" definition, and a substantive or "thick " definition; one occasionally encounters a third "functional" conception. 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.
Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared (prohibitions or exigencies), with prospective application (punishments or consequences tied to a given prohibition or exigency), and possess the characteristics of generality (usually meaning consistency and comprehensibility), equality (that is, applied equally throughout all society), and certainty (that is, certainty of application for a given situation), 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. Still, 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. 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 ." 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". Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory 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 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. A government based on the rule of law can be called a "nomocracy", from the Greek nomos (law) and kratos (power or rule).
The preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms says "the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law".
In France and Germany the concepts of rule of law (Etat de droit and Rechtsstaat respectively) are analogous to the principles of constitutional supremacy and protection of fundamental rights from public authorities (see public law ), particularly the legislature . France was one of the early pioneers of the ideas of the rule of law. The German interpretation is more "rigid" but similar to that of France and the United Kingdom.
Finland's constitution explicitly requires rule of law by stipulating that "the exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed."
Main article: Rule of law in the United Kingdom
In the United Kingdom the rule of law is a long-standing principle of
the way the country is governed, dating from
Magna Carta in 1215 and
Bill of Rights 1689 . In the 19th century,
A. V. Dicey , a
constitutional scholar and lawyer, wrote of the twin pillars of the
British constitution in his classic work Introduction to the Study of
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. ------------------------- 90–100th percentile* 75–90th percentile 50–75th percentile 25–50th percentile 10–25th percentile 0–10th percentile ------------------------- * Percentile rank indicates the percentage of countries worldwide that rate below the selected country.
All government officers of the United States, including the President
, the Justices of the Supreme
Scholars continue to debate whether the U.S.
Some modern scholars contend that the rule of law has been corroded during the past century by the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound . For example, Brian Tamanaha asserts: "The rule of law is a centuries-old ideal, but the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries."
Others argue that the rule of law has survived but was transformed to
allow for the exercise of discretion by administrators. For much of
American history, the dominant notion of the rule of law, in this
setting, has been some version of A. V. Dicey's: "no man is punishable
or can be lawfully made to suffer in body or goods except for a
distinct breach of law established in the ordinary legal manner before
the ordinary Courts of the land." That is, individuals should be able
to challenge an administrative order by bringing suit in a court of
general jurisdiction. As the dockets of worker compensation
commissions, public utility commissions and other agencies burgeoned,
it soon became apparent that letting judges decide for themselves all
the facts in a dispute (such as the extent of an injury in a worker's
compensation case) would overwhelm the courts and destroy the
advantages of specialization that led to the creation of
administrative agencies in the first place. Even Charles Evans Hughes,
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." Chief
East Asian cultures are influenced by two schools of thought,
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. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.
In Thailand, a kingdom that has had a constitution since the initial attempt to overthrow the absolute monarchy system in 1932, the rule of law has been more of a principle than actual practice. Ancient prejudices and political bias have been present in the three branches of government with each of their foundings, and justice has been processed formally according to the law but in fact more closely aligned with royalist principles that are still advocated in the 21st century. In November 2013, Thailand faced still further threats to the rule of law when the executive branch rejected a supreme court decision over how to select senators.
In India, the longest constitutional text in the history of the world
has governed that country since 1950. Although the
Japan had centuries of tradition prior to
World War II
Various organizations are involved in promoting the rule of law.
INTERNATIONAL COMMISSION OF JURISTS
In 1959, an international gathering of over 185 judges, lawyers, and
law professors from 53 countries, meeting in
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, accountability 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 has also regularly addressed rule of law issues with respect to countries on its agenda. The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights education .
INTERNATIONAL BAR ASSOCIATION
The Council of the International Bar Association 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
WORLD JUSTICE PROJECT
As used by the World Justice Project , 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.
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
THE INTERNATIONAL DEVELOPMENT LAW ORGANIZATION (IDLO)
The International Development
The International Development
More than a matter of due process, the rule of law is an enabler of justice and development. The three notions are interdependent; when realized, they are mutually reinforcing. For IDLO, as much as a question of laws and procedure, the rule of law is a culture and daily practice. It is inseparable from equality, from access to justice and education, from access to health and the protection of the most vulnerable. It is crucial for the viability of communities and nations, and for the environment that sustains them.
IDLO is headquartered in Rome and has a branch office in The Hague and has Permanent Observer Status at the United Nations General Assembly in New York City.
THE INTERNATIONAL NETWORK TO PROMOTE THE RULE OF LAW (INPROL)
The International Network to Promote the Rule of
INPROL provides an online forum for the exchange of information about best practices. Members may post questions, and expect a response from their fellow rule of law practitioners worldwide on their experiences in addressing rule of law issues.
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 economics 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 , which, in many transitional and developing countries , is completely controlled by the executive. It is useful to distinguish between the two methods of corruption 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 , 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 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
The "rule of law" primarily connotes "protection of property rights."
F. A. Hayek analyzed how the Rule of
Studies have shown that weak rule of law (for example, discretionary regulatory enforcement) discourages investment. Economists have found, for example, that a rise in discretionary regulatory enforcement caused US firms' to abandon international investments.
IN RELATION TO CULTURE
The rule of law can be hampered when there is a disconnect between legal and popular consensus. An example is intellectual property. Under the auspices of the World Intellectual Property Organization , nominally strong copyright laws have been implemented throughout most of the world; but because the attitude of much of the population does not conform to these laws, a rebellion against ownership rights has manifested in rampant piracy , including an increase in peer-to-peer file sharing . Similarly, in Russia, tax evasion is common and a person who admits he does not pay taxes is not judged or criticized by his colleagues and friends, because the tax system is viewed as unreasonable. Bribery likewise has different normative implications across cultures.
NOTES AND REFERENCES
* ^ Cole, John et al. (1997). The Library of Congress, W. W. Norton
(hence) the principle whereby all members of a society (including
those in government) are considered equally subject to publicly
disclosed legal codes and processes. See “Civil Affairs and Rule of
Law”, Dudley Knox Library,
Naval Postgraduate School (accessed
October 18, 2013) (quoting the OED). The phrase "rule of law" is also
sometimes used in other senses. See Garner, Bryan A. (Editor in
* ^ Xiangming, Zhang. On Two Ancient Chinese Administrative Ideas:
Rule of Virtue and Rule by Law, The Culture Mandala: Bulletin of the
Centre for East-West Cultural and Economic Studies (2002): “Although
Han Fei recommended that the government should rule by law, which
seems impartial, he advocated that the law be enacted by the lords
solely. The lords place themselves above the law. The law is thereby a
monarchical means to control the people, not the people's means to
restrain the lords. The lords are by no means on an equal footing with
the people. Hence we cannot mention the rule by law proposed by Han
Fei in the same breath as democracy and the rule of law advocated
Bevir, Mark. The Encyclopedia of Political Theory, page 162.
Munro, Donald. The Concept of Man in Early China. Page 4.
Guo, Xuezhi. The Ideal Chinese Political Leader: A Historical and
Cultural Perspective. Page 152. * ^ Peerenboom, Randall (1993). Law
and morality in ancient China: the silk manuscripts of Huang-Lao. SUNY
Press. p. 171. ISBN 9780791412374 .
* ^ Levinson, Bernard. "The First Constitution: Rethinking the
Origins of Rule of
* Oakeshott, Michael (2006). "Chapters 31 and 32". In Terry Nardin and Luke O'Sullivan. Lectures in the History of Political Thought. Exeter, UK: Imprint Academic. p. 515. ISBN 978-1845400934 . OCLC 63185299 . * Amity Shlaes ,The Forgotten Man: A New History of the Great Depression, "The Rules of the Game and Economic Recovery". * Alessandro Torre, United Kingdom, Il Mulino, Bologna, 2005.
* Hague Journal on the Rule of Law, includes academic articles, practitioner