The rule of law is a legal maxim that provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. The rule of law stands in contrast to the idea that the leader is above the law, a feature of Roman law, Nazi law, and certain other legal systems.

The phrase has been used since the 17th century, but the concept is older. For example, the Greek philosopher Aristotle said, "Law should govern".

One way to be free from the rule of law is by denying that an enactment has the necessary attributes of law. The rule of law has therefore been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings".

At least two principal conceptions of the rule of law can be identified: 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 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. Dicey, development of the legal concept can be traced through history to many ancient civilizations, including Ancient Greece, Ancient China, ancient Mesopotamia, and Ancient Rome.

Antiquity

In Western philosophy, the Ancient Greeks initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, 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 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 statesman Cicero, "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 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.

Middle Ages

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. However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.

In 1215, 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.

Modern times

In a petition to James I of England in 1610, the House of Commons 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 in Lex, Rex (1644). The title is Latin for "the law is king" and reverses the traditional rex lex ("the king is the law"). John Locke 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 (1748).

In 1776, the notion that no one is above the law was popular during the founding of the United States, for example Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."

Categorization of interpretations

Different people have different interpretations about exactly what "rule of law" means. According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings. Among modern legal theorists, most views on this subject fall into three general categories: the formal (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." 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 governance of a country. Research, like the Worldwide Governance Indicators, defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map below.

United States

thumb|450px|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 dark green (90th-100th percentile) to light green (75th-90th percentile), yellow (50th-75th percentile), orange (25th-50th percentile), pink (10th-25th percentile) and red (0th-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 Court, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government does have considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion, and the executive branch also has various discretionary powers including prosecutorial discretion.

Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law," and if so, which one. For example, Law Professor John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria," and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.

James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course."

Asia

East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism, 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, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent:

Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party….That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade?

In countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights.. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.

In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges."

Japan had centuries of tradition prior to World War II, during which there were laws, but they were not a central organizing principle for society, and they did not constrain the powers of government. As the 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 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.

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, 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.

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 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 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.

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. Dicey 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 Raz identified several principles that may be associated with the rule of law in some (but not all) societies. Raz's principles encompass the requirements of guiding the individual's behaviour and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz's principles are as follows:

That laws should be prospective rather than retroactive.

Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.

There should be clear rules and procedures for making laws.

The independence of the judiciary has to be guaranteed.

The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.

The courts should have the power of judicial review over the way in which the other principles are implemented.

The courts should be accessible; no man may be denied justice.

The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally "is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man".

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 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 schools

The rule of law is generally acknowledged to be a cornerstone of orderly, organized society, including within schools. The Sudbury School is an example of a school where laws are always promulgated in writing, and careful records are kept of the body of precedents surrounding each rule. There is no opening, however small, for arbitrary or capricious authority to step in.

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 law 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 kills him. If the law does not permit the acquittal of those who claim self-defense in the absence of an imminent threat 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 certainty

Sovereign immunity

Equality before the law

Judicial activism

Mob rule

Violent non-state actor

Constitutional economics

Judiciary

Separation of powers

Civil society

Nuremberg Principles

Public interest litigation

Rechtsstaat

Rule According to Higher Law

State secrets privilege

Notes

External links

The Global Herald">Articles Tagged "Rule of Law" in The Global Herald

"Economics and the Rule of Law" The Economist (2008-03-13).

Hague Journal on the Rule of Law, includes academic articles, practitioner reports, commentary, and book reviews.

International Network to Promote the Rule of Law, United States Institute of Peace.

Dicey, Albert. Introduction to the Study of the Law of the Constitution (Eighth Edition, Macmillan, 1915).

Rule of Law Resource Center, LexisNexis

Bingham, Thomas. "The Rule of Law", Centre for Public Law, Faculty of Law, University of Cambridge (2006-11-16).

"The Rule of Law Inventory Report", Hague Institute for the Internationalisation of Law (HiiL), Hague Academic Coalition (2007-04-20).

"UN Rule of Law, Security Officials Outline Key Priorities for 2008", UN News Centre, United Nations (2008-01-21).

Yu, Helen et al. "What is the Rule of Law?", Center for International Finance and Development, University of Iowa (2007-08-29)

The World Justice Project A multinational, multidisciplinary initiative to strengthen the rule of law worldwide.

World Justice Map Map-based information exchange platform facilitating networking among Rule of Law promoters globally.

"The Worldwide Governance Indicators (WGI) Project", World Bank

Movement for Rule of Law, Related to Lawyers Movement Pakistan.

"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"

Category:Law Category:Theories of law Category:Philosophy of law Category:Political philosophy Category:Philosophical terminology

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