Rule of law
The
rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed
laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance.
Samuel Rutherford was one of the first modern authors to give the principle theoretical foundations in
Lex, Rex (1644), and later
Montesquieu in
The Spirit of the Laws (1748).
In
Commonwealth law, the most famous exposition of the concept of rule of law was laid down by
Albert Venn Dicey in his
Law of the Constitution in
1895:
... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. : --
Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.
Thus,
those who make and enforce the law are themselves bound to adhere to it.
In
American law, the most famous exposition of the same principle was drafted by
John Adams for the constitution of the Commonwealth of
Massachusetts, in justification of the principle of
separation of powers:
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.: —
Massachusetts Constitution, Part The First, art. XXX (1780).
The last phrase, "to the end it may be a government of laws and not of men," has been quoted with approval by the
U.S. Supreme Court and every
state supreme court in the
United States.
A similar concept is found in
Common Sense (1776) by
Thomas Paine:
. . . the world may know, that so far as we approve of monarchy, 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. The concept "rule of law" is generally associated with several other concepts, such as:
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Nullum crimen, nulla poena sine praevia lege poenali - No
ex post facto laws
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Presumption of innocence - All individuals are "innocent until proven otherwise"
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Double jeopardy - Individuals may only be punished
once for every specific crime committed. Retrials may or may not be permitted on the grounds of new evidence. See also
res judicata.
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Legal equality - All individuals are given the same rights without distinction to their social stature, religion, political opinions, etc. That is, as
Montesquieu would have it, "law should be like death, which spares no one."
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Habeas corpus - in full
habeas corpus ad subjiciendum, a Latin term meaning "you must have the body to be subjected (to examination)". A person who is arrested has the right to be told what crimes he or she is accused of, and to request that his or her custody be reviewed by judicial authority. Persons unlawfully imprisoned have to be freed.
The concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation or one without respect for
human rights can exist with or without a "rule of law", a situation which many argue is applicable to several modern
dictatorships. However, the "rule of law" is considered a pre-requisite for
democracy, and as such, has served as a common basis for
human rights discourse between countries such as the
People's Republic of China and the West.
The rule of law is an ancient ideal first posited by
Aristotle as a system of rules inherent in the
natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it. The concept of impartial rule of law is found in the Chinese political philosophy of
Legalism, but the totalitarian nature of the regime that this produced had a profound effect on Chinese political thought which at least rhetorically emphasized personal moral relations over impersonal legal ones. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft.
In the Anglo-American legal tradition rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the government. In the
People's Republic of China the discourse around rule of law centers on the notion that laws ultimately enhance the power of the state and the nation, which is why the Chinese government adopts the principle of rule
by law rather than rule
of law.
While there is a consensus in different parts of the world that rule of law is a good thing, this is not a universally accepted proposition . The
People's Republic of China during the
Cultural Revolution has been rather negative toward the idea of rule of law, arguing that it interferes with
class struggle .
Rule of law is opposed by
authoritarian and
totalitarian states. The explicit policy of those governments, as evidenced in the
Night and Fog decrees of
Nazi Germany, is that the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations.
The rule of law, i.e., the application of the body of law to the government, does not restrict the government in any way since any desired government privilege can be made by the government into a legal provision. The rule of law should be seen more as a bureaucratic hoop for the government to jump through than as a material restriction on government power.
Similarly, the principle of legal equality can be easily subverted since many laws affect different people in different ways. A law giving the legislators a raise, for example, affects the legislators in a different way than it affects the rest of the public.
Marxist theory analyzed the
capitalist state as an instrument of oppression of the people at the hands of the
bourgeoisie, which set the laws to suit itself. Following this, some
critical theorists analyze the "rule of law" as a juridical fiction which aims at disguising the reality of violence and, in Marxist terminology, "
class struggle".
The Italian philosopher
Giorgio Agamben argues that the
state of exception is at the core of the concept of
sovereignty, and not the "rule of law" as
liberal thinkers have it. While the sovereign claims to follow the "rule of law", any protection the people have, however fundamental, can be jettisoned once the government finds it convenient to do so. An example of this practice is
anti-terrorism legislation which legalizes government conduct such as holding
extrajudicial prisoners and the use of
torture, annulling legal provisions that are considered liberal cornerstones.
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law*
legal formalism*
Judicial activism*
jurisprudence*
mundialization*
state of emergency*
War on Terror
