Rule of law

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"Rule of Law" redirects here. For other uses, see Rule of Law (disambiguation).
Not to be confused with rule according to higher law.
Mosaic representing both the judicial and legislative aspects of law. The woman on the throne holds a sword to chastise the guilty and a palm branch to reward the meritorious. Glory surrounds her head, and the aegis of Minerva signifies the armor of righteousness and wisdom.[1]
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The rule of law is defined in the Oxford English Dictionary as: "The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes." [2] The phrase "the rule of law" refers to a political situation, not to any specific legal rule.

Use of the phrase can be traced back to 16th-century Britain, and in the following century the Scottish theologian Samuel Rutherford employed it in arguing against the divine right of kings.[3] John Locke wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon liberty. "The rule of law" was further popularized in the 19th century by British jurist A. V. Dicey. However, the principle, if not the phrase itself, was recognized by ancient thinkers; for example, Aristotle wrote: "It is more proper that law should govern than any one of the citizens".[4]

The rule of law implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges.[5] In this sense, it stands in contrast to a monarchy or oligarchy where the rulers are held above the law.[citation needed] Lack of the rule of law can be found in both democracies and monarchies, for example, because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it.

History[edit]

Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey,[6][7] development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India, and Rome.[8]

Antiquity[edit]

In the West, the ancient Greeks initially regarded the best form of government as rule by the best men.[9] Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.[9] 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."[10] More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.[9] 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.[4]

The Roman statesman Cicero is often cited as saying, roughly: "We are all servants of the laws in order to be free."[11] 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), but those with grievances could sue the treasury.[6]

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.[12] 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.[13]

There has recently been an effort to reevaluate the influence of the Bible on Western constitutional law. In the Old Testament, the book of Deuteronomy imposes certain restrictions on the king, regarding such matters as the numbers of wives he might take and of horses he might acquire (for his own use). According to Professor Bernard M. Levinson, "This legislation was so utopian in its own time that it seems never to have been implemented...."[14] The Deuteronomic social vision may have influenced opponents of the divine right of kings, including Bishop John Ponet in sixteenth-century England.[15]

Middle Ages[edit]

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.[16] However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.[17]

Alfred the Great, Anglo-Saxon king in the 9th century, reformed the law of his kingdom and assembled a law code (the Doom Book) which he grounded on biblical commandments. He held that the same law had to be applied to all persons, whether rich or poor, friends or enemies. This was likely inspired by Leviticus 19:15: "You shall do no iniquity in judgment. You shall not favor the wretched and you shall not defer to the rich. In righteousness you are to judge your fellow."[18]

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.[19][20] This foundation for a constitution was carried into the United States Constitution.

In 1481, during the reign of Ferdinand II of Aragon, the Constitució de l'Observança was approved by the General Court of Catalonia, establishing the submission of royal power (included its officers) to the laws of the Principality of Catalonia.[21]

Early modern period[edit]

See also: Rechtsstaat
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The first known use of this English phrase occurred around AD 1500.[22] Another early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons:

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....[23]

In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions (according to his own report) "that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.)."

Among the first modern authors to use the term and give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644).[3] The title, Latin for "the law is king", subverts the traditional formulation rex lex ("the king is law").[24] James Harrington wrote in Oceana (1656), drawing principally on Aristotle's Politics, that among forms of government an “Empire of Laws, and not of Men” was preferable to an “Empire of Men, and not of Laws”.[25]

John Locke also discussed this issue in his Second Treatise of Government (1690):

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.[26]

The principle was also discussed by Montesquieu in The Spirit of the Laws (1748).[27] The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755).[28]

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."[29] In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."[30]

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.[31][32]

Meaning and categorization of interpretations[edit]

The Oxford English Dictionary has defined rule of law this way:[2]

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 implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.

Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion".[33] 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.[34] 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.[35]

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.[36]

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.[34] 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".[36] 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".[36] 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.[37] The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.[36]

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."[38]

Status in various jurisdictions[edit]

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.

The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country.[39] 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."[39] 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 at right.[40]

Europe[edit]

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.[41][42] France was one of the early pioneers of the ideas of the rule of law.[43] The German interpretation is more "rigid" but similar to that of France and the United Kingdom.[44][45]

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."

United Kingdom[edit]

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 the Bill of Rights 1689.[24][46][47] 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 the Law of the Constitution (1885); these two pillars are the rule of law and parliamentary sovereignty.[48]

Americas[edit]

United States[edit]

All government officers of the United States, including the President, the Justices of the Supreme Court, state judges and legislators, 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.[49] At the same time, the federal government has 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,[50] 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, 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.[51] 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.[52]

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."[53]

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, a Chief Justice of the United States, believed "you must have administration, and you must have administration by administrative officers." By 1941, a compromise had emerged. If administrators adopted procedures that more or less tracked "the ordinary legal manner" of the courts, further review of the facts by "the ordinary Courts of the land" was unnecessary. That is, if you had your "day in commission", the rule of law did not require a further "day in court". Thus Dicey's rule of law was recast into a purely procedural form.[54]

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."[55] Chief Justice John Marshall (joined by Justice Joseph Story) 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."[56]

Asia[edit]

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, Singapore, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state.[57] 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?[58]

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 the 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.[59] 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.[citation needed] 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.[citation needed] 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.[citation needed]

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.[60] 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."[61]

Japan had centuries of tradition prior to World War II, during which there were laws, but they did not provide a central organizing principle for society, and they did not constrain the powers of government (Boadi, 2001). 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.[62][63]

Organizations[edit]

Various organizations are involved in promoting the rule of law.

The Council of Europe[edit]

The Statute of the Council of Europe characterizes the rule of law as one of the core principles which the establishment of the organization based on. The paragraph 3 of the preamble of the Statute of the Council of Europe states: "Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy." The Statute lays the compliance with the rule of law principles as a condition for the European states to be a full member of the organization.[64]

International Commission of Jurists[edit]

In 1959, an event took place in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. The event consisted of over 185 judges, lawyers, and law professors from 53 countries. This later became known as the Declaration of Delhi. During the declaration they declared what the rule of law implied. They included certain rights and freedoms, an independent judiciary and social, economic and cultural conditions conducive to human dignity. The one aspect not included in The Declaration of Delhi, was for rule of law requiring legislative power to be subject to judicial review.[65]

United Nations[edit]

The Secretary-General of the United Nations defines the rule of law as:[66]

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.[67] The Security Council has held a number of thematic debates on the rule of law,[68] and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security,[69] children in armed conflict,[70] and the protection of civilians in armed conflict.[71] The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda.[72] The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights education.[73]

International Bar Association[edit]

The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:[74]

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[edit]

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:[75]

  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.[76]

The International Development Law Organization (IDLO)[edit]

The International Development Law Organization (IDLO) is an intergovernmental organization with a joint focus on the promotion of rule of law and development. It works to empower people and communities to claim their rights, and provides governments with the know-how to realize them.[77] It supports emerging economies and middle-income countries to strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity.[78] It is the only intergovernmental organization with an exclusive mandate to promote the rule of law and has experience working in more than 170 countries around the world.[79]

The International Development Law Organization has a holistic definition of the rule of law:

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.[80]

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)[edit]

The International Network to Promote the Rule of Law (INPROL) is a network of over 3,000 law practitioners from 120 countries and 300 organizations working on rule of law issues in post-conflict and developing countries from a policy, practice and research perspective. INPROL is based at the US Institute of Peace (USIP) in partnership with the US Department of State Bureau of International Narcotics and Law Enforcement, the Organization for Security and Cooperation in Europe (OSCE) Strategic Police Matters Unit, the Center of Excellence for Police Stability Unit, and William and Marry School of Law in the United States.[81] Its affiliate organizations include the United Nations Office on Drugs and Crime, Folke Bernadotte Academy, International Bar Association, International Association of Chiefs of Police, International Association of Women Police, International Corrections and Prisons Association, International Association for Court Administration, International Security Sector Advisory Team at the Geneva Centre for the Democratic Control of Armed Forces, Worldwide Association of Women Forensic Experts (WAWFE), and International Institute for Law and Human Rights.

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[edit]

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?[82] 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.[83]

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.[84]

The "rule of law" primarily connotes "protection of property rights".[85] The economist F. A. Hayek analyzed how the rule of law might be beneficial to the free market. Hayek proposed that under the rule of law, individuals would be able to make wise investments and future plans with some confidence in a successful return on investment when he stated: "under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts."[86]

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.[87]

In relation to culture[edit]

The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments or Roerich Pact is an inter-American treaty. The most important idea of the Roerich Pact is the legal recognition that the defense of cultural objects is more important than the use or destruction of that culture for military purposes, and the protection of culture always has precedence over any military necessity.[88] The Roerich Pact signed on April 15, 1935 by the representatives of 21 American states in the Oval Office of the White House (Washington, DC). It was the first international treaty signed in the Oval Office.[89] The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is the first international treaty that focuses on the protection of cultural property in armed conflict. It was signed at The Hague, Netherlands on 14 May 1954 and entered into force on 7 August 1956. As of June 2017, it has been ratified by 128 states.[90]

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.[91] 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.[92] Bribery likewise has different normative implications across cultures.[85]

Criticism[edit]

The Rule of Law has been criticised by several scholars, authors, philosophers and activists as unrealistic, hypocritical or dangerous.[citation needed]

See also[edit]

By jurisdiction[edit]

Legal scholars[edit]

Notes and references[edit]

  1. ^ Cole, John et al. (1997). The Library of Congress, W.W. Norton & Company. p. 113
  2. ^ a b Oxford English Dictionary online (accessed September 13, 2018; spelling Americanized). The phrase "the rule of law" is also sometimes used in other senses. See Garner, Bryan A. (Editor in Chief). Black's Law Dictionary, 9th Edition, p. 1448. (Thomson Reuters, 2009). ISBN 978-0-314-26578-4. Black's provides five definitions of "rule of law": the lead definition is "A substantive legal principle"; the second is the "supremacy of regular as opposed to arbitrary power".
  3. ^ a b Rutherford, Samuel. Lex, rex: the law and the prince, a dispute for the just prerogative of king and people, containing the reasons and causes of the defensive wars of the kingdom of Scotland, and of their expedition for the ayd and help of their brethren of England, p. 237 (1644): "The prince remaineth, even being a prince, a social creature, a man, as well as a king; one who must buy, sell, promise, contract, dispose: ergo, he is not regula regulans, but under rule of law...."
  4. ^ a b Aristotle, Politics 3.16
  5. ^ Hobson, Charles. The Great Chief Justice: John Marshall and the Rule of Law, p. 57 (University Press of Kansas, 1996): according to John Marshall, "the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature."
  6. ^ a b Wormuth, Francis. The Origins of Modern Constitutionalism, p. 28 (1949).
  7. ^ Bingham, Thomas. The Rule of Law, p. 3 (Penguin 2010).
  8. ^ Black, Anthony. A World History of Ancient Political Thought (Oxford University Press 2009). ISBN 0-19-928169-6
  9. ^ a b c David Clarke, "The many meanings of the rule of law" in Kanishka Jayasuriya, ed., Law, Capitalism and Power in Asia (New York: Routledge, 1998).
  10. ^ Cooper, John et al. Complete Works By Plato, p. 1402 (Hackett Publishing, 1997).
  11. ^ In full: "The magistrates who administer the law, the judges who act as its spokesmen, all the rest of us who live as its servants, grant it our allegiance as a guarantee of our freedom."—Cicero (1975). Murder Trials. Penguin Classics. Translated by Michael Grant. Harmondsworth: Penguin. p. 217. Original Latin: "Legum ministri magistratus, legum interpretes iudices, legum denique idcirco omnes servi sumus ut liberi esse possimus."—"Pro Cluentio". The Latin Library. 53:146. Retrieved 5 March 2018.
  12. ^ 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 today.”
    Bevir, Mark. The Encyclopedia of Political Theory, page 162.
    Munro, Donald. The Concept of Man in Early China. p. 4.
    Guo, Xuezhi. The Ideal Chinese Political Leader: A Historical and Cultural Perspective. p. 152.
  13. ^ Peerenboom, Randall (1993). Law and morality in ancient China: the silk manuscripts of Huang-Lao. SUNY Press. p. 171. ISBN 978-0-7914-1237-4.
  14. ^ Levinson, Bernard. "The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers in Light of Deuteronomy", Cardozo Law Review, Vol. 27, No. 4, pp. 1853–1888 (2006).
  15. ^ Brett, Mark G. “National Identity as Commentary and as Metacommentary”, in Historiography and Identity (Re)formulation in Second Temple Historiographical Literature, p. 32 (Jonker, ed.) (Continuum 2010).
  16. ^ Weeramantry, Christopher (1997). Justice without Frontiers, p. 132 Martinus Nijhoff Publishers.
  17. ^ Hallaq, Wael (2013). The Impossible State: Islam, Politics and Modernity's Moral Predicament. Columbia University Press.
  18. ^ Alter, Robert (2004). The Five Books of Moses: A Translation with Commentary. W.W. Norton & Company. p. 627. ISBN 978-0-393-01955-1.
  19. ^ Magna Carta (1215) translation, British Library
  20. ^ Magna Carta (1297) U.S. National Archives.
  21. ^ Ferro, Víctor: El Dret Públic Català. Les Institucions a Catalunya fins al Decret de Nova Planta; Eumo Editorial; ISBN 84-7602-203-4
  22. ^ Oxford English Dictionary (OED), "Rule of Law, n.", accessed April 27, 2013. According to the OED, this sentence from about 1500 was written by John Blount: "Lawes And constitutcions be ordeyned be cause the noysome Appetit of man maye be kepte vnder the Rewle of lawe by the wiche mankinde ys dewly enformed to lyue honestly." And this sentence from 1559 is attributed to William Bavand: "A Magistrate should..kepe rekenyng of all mennes behauiours, and to be carefull, least thei despisyng the rule of lawe, growe to a wilfulnes."
  23. ^ Hallam, Henry. The Constitutional History of England, vol. 1, p. 441 (1827).
  24. ^ a b "The Rule of Law". The Constitution Society. Archived from the original on 6 October 2014. Retrieved 3 October 2014.
  25. ^ Harrington, James (1747). Toland, John, ed. The Oceana and other works (3 ed.). London: Millar. p. 37 (Internet Archive: copy possessed by John Adams).
  26. ^ Locke, John. Second Treatise of Civil Government, Ch. IV, sec. 22 (1690).
  27. ^ Tamanaha, Brian. On the Rule of Law, p. 47 (Cambridge University Press, 2004).
  28. ^ Peacock, Anthony Arthur, Freedom and the rule of law, p. 24. 2010.
  29. ^ Lieberman, Jethro. A Practical Companion to the Constitution, p. 436 (University of California Press 2005).
  30. ^ Massachusetts Constitution, Part The First, art. XXX (1780).
  31. ^ Winks, Robin W. (1993). World civilization: a brief history (2nd ed.). San Diego, CA: Collegiate Press. p. 406. ISBN 978-0-939693-28-3.
  32. ^ Billias, George Athan (2011). American constitutionalism heard round the world, 1776–1989: a global perspective. New York: New York University Press. pp. 53–56. ISBN 978-0-8147-2517-7.
  33. ^ Tamanaha, Brian Z. (2004). On the Rule of Law. Cambridge University Press. p. 3.
  34. ^ a b Tamanaha, Brian. “The Rule of Law for Everyone?”, Current Legal Problems, vol. 55, via SSRN (2002).
  35. ^ Craig, Paul P. (1997). "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework". Public Law: 467.
  36. ^ a b c d Stephenson, Matthew. "Rule of Law as a Goal of Development Policy", World Bank Research (2008).
  37. ^ Heidi M. Hurd (Aug 1992). "Justifiably Punishing the Justified". Michigan Law Review. 90 (8): 2203–2324. doi:10.2307/1289573. JSTOR 1289573.
  38. ^ Tamanaha, Brian 2004). On the Rule of Law. Cambridge University Press. p. 3
  39. ^ a b Kaufman, Daniel et al. "Governance Matters VI: Governance Indicators for 1996–2006, World Bank Policy Research Working Paper No. 4280" (July 2007).
  40. ^ "Governance Matters 2008" Archived 2009-03-28 at the Wayback Machine, World Bank.
  41. ^ Pech, Laurent (2006-09-10). "Rule of Law in France". Middlesex University – School of Law. SSRN 929099.
  42. ^ Letourneur, M.; Drago, R. (1958). "The Rule of Law as Understood in France". The American Journal of Comparative Law. 7 (2): 147–177. doi:10.2307/837562. JSTOR 837562.
  43. ^ Peerenboom, Randall (2004). "Rule of Law in France". Asian discourses of rule of law : theories and implementation of rule of law in twelve Asian countries, France and the U.S. (Digital printing. ed.). RoutledgeCurzon. p. 81. ISBN 978-0-415-32612-4.
  44. ^ Rule of Law in China: A Comparative Approach. Springer. 2014. pp. 77–78. ISBN 978-3-662-44622-5.
  45. ^ Zurn, Michael; Nollkaemper, Andre; Peerenboom, Randy, eds. (2012). Rule of Law Dynamics: In an Era of International and Transnational Governance. Cambridge University Press. pp. 116–117. ISBN 978-1-139-51097-4.
  46. ^ "Rule of Law". The British Library. Retrieved 3 October 2014.
  47. ^ See also "The rule of law and the prosecutor". Attorney General's Office. 9 September 2013. Retrieved 20 November 2014.
  48. ^ Hostettler, John (2011). Champions of the rule of law. Waterside Press. p. 23. ISBN 978-1-904380-68-9.
  49. ^ Vile, Josh (2006). A Companion to the United States Constitution and its Amendments. Greenwood Publishing Group. p. 80
  50. ^ 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."
  51. ^ Harrison, John. "Substantive Due Process and the Constitutional Text," Virginia Law Review, vol. 83, p. 493 (1997).
  52. ^ Gedicks, Frederick. "An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment", Emory Law Journal, vol. 58, pp. 585–673 (2009). See also Edlin, Douglas, "Judicial Review without a Constitution", Polity, vol. 38, pp. 345–368 (2006).
  53. ^ Tamanaha, Brian. How an Instrumental View of Law Corrodes the Rule of Law, twelfth annual Clifford Symposium on Tort Law and Social Policy.
  54. ^ Ernst, Daniel R. (2014). Tocqueville's Nightmare: The Administrative State Emerges in America, 1900–1940. Oxford University Press. ISBN 978-0-19-992086-0
  55. ^ Snowiss, Sylvia. Judicial Review and the Law of the Constitution, pp. 41–42 (Yale University Press 1990).
  56. ^ Ogden v. Saunders, 25 U.S. 213, 347 (1827). This was Marshall's only dissent in a constitutional case. The individualist anarchist Lysander Spooner later denounced Marshall for this part of his Ogden dissent. See Spooner, Lysander (2008). Let's Abolish Government. Ludwig Von Mises Institute. p. 87. These same issues were also discussed in an earlier U.S. Supreme Court case, Calder v. Bull, 3 U.S. 386 (1798), with Justices James Iredell and Samuel Chase taking opposite positions. See Presser, Stephen. "Symposium: Samuel Chase: In Defense of the Rule of Law and Against the Jeffersonians", Vanderbilt Law Review, vol. 62, p. 349 (March 2009).
  57. ^ Chu, Yun-Han et al. How East Asians View Democracy, pp. 31–32.
  58. ^ Thi, Awzar. "Asia needs a new rule-of-law debate", United Press International, UPIAsia.com (2008-08-14).
  59. ^ Peerenboom, Randall in Asian Discourses of Rule of Law, p. 39 (Routledge 2004).
  60. ^ Baxi, Upendra in Asian Discourses of Rule of Law, pp. 336–337 (Routledge 2004).
  61. ^ Robinson, Simon. "For Activist Judges, Try India", Time Magazine (2006-11-08).
  62. ^ Green, Carl. "Japan: 'The Rule of Law Without Lawyers' Reconsidered" Archived 2008-06-23 at the Wayback Machine, Speech to the Asia Society (2001-03-14).
  63. ^ See also Goodman, Carl F. (2008). The rule of law in Japan : a comparative analysis (2nd rev. ed.). Wolters Kluwer Law & Business. ISBN 978-90-411-2750-1.
  64. ^ "Statute of the Council of Europe".
  65. ^ Goldsworthy, Jeffrey. “Legislative Sovereignty and the Rule of Law" in Tom Campbell, Keith D. Ewing and Adam Tomkins (eds), Sceptical Essays on Human Rights (Oxford: Oxford University Press, 2001), p. 69.
  66. ^ What is the Rule of Law?, United Nations Rule of Law.
  67. ^ See United Nations General Assembly Resolutions A/RES/61/39, A/RES/62/70, A/RES/63/128.
  68. ^ See United Nations Security Council debates S/PRST/2003/15, S/PRST/2004/2, S/PRST/2004/32, S/PRST/2005/30, S/PRST/2006/28.
  69. ^ See United Nations Security Council Resolutions 1325 and 1820.
  70. ^ E.g. see United Nations Security Council Resolution 1612.
  71. ^ E.g. see United Nations Security Council Resolution 1674.
  72. ^ United Nations and the Rule of Law.
  73. ^ Vienna Declaration and Programme of Action Part II, paragraph 79
  74. ^ Resolution of the Council of the International Bar Association of October 8, 2009, on the Commentary on Rule of Law Resolution (2005).
  75. ^ About the WJP.
  76. ^ Agrast, M., Botero, J., Ponce, A., WJP Rule of Law Index 2011. Washington, DC: The World Justice Project. (2011).
  77. ^ "IDLO – What We Do". idlo.int. Retrieved 7 February 2015.
  78. ^ IDLO Strategic Plan Archived 2015-02-08 at the Wayback Machine
  79. ^ IDLO Mission and History
  80. ^ IDLO – Rule of Law
  81. ^ "INPROL | Home". Archived from the original on 2017-02-02. Retrieved 2017-02-09.
  82. ^ Luis Flores Ballesteros. "Corruption and development. Does the 'rule of law' factor weigh more than we think?" 54 Pesos May. 2008:54 Pesos 15 Nov 2008. [1]
  83. ^ Peter Barenboim, "Defining the rules", The European Lawyer, Issue 90, October 2009
  84. ^ Peter Barenboim, Natalya Merkulova. "The 25th Anniversary of Constitutional Economics: The Russian Model and Legal Reform in Russia, in The World Rule of Law Movement and Russian Legal Reform", edited by Francis Neate and Holly Nielsen, Justitsinform, Moscow (2007).
  85. ^ a b Licht, Amir N. (December 2007). "Culture rules: The foundations of the rule of law and other norms of governance". Journal of Comparative Economics. 35 (4): 659–688.
  86. ^ Hayek, F.A. (1994). The Road to Serfdom. Chicago: The University of Chicago Press. p. 81. ISBN 978-0-226-32061-8.
  87. ^ Graham, Brad; Stroup, Caleb (2016). "Does Anti-bribery enforcement deter foreign investment?" (PDF). Applied Economics Letters: 63–67 – via Taylor and Francis.
  88. ^ Peter Barenboim, Naeem Sidiqi, Bruges, the Bridge between Civilizations: The 75 Anniversary of the Roerich Pact, Grid Belgium, 2010. ISBN 978-5-98856-114-9
  89. ^ Elisabeth Stoumatoff, FDR's Unfinished Portrait: A Memoir, University of Pittsburgh Press, 1990, ISBN 0-8229-3659-3
  90. ^ http://www.unesco.org/eri/la/convention.asp?KO=13637&language=E&order=alpha
  91. ^ Bica-Huiu, Alina, White Paper: Building a Culture of Respect for the Rule of Law, American Bar Association
  92. ^ Pope, Ronald R. "The Rule of Law and Russian Culture – Are They Compatible?" (PDF).

Bibliography[edit]

External links[edit]

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