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Rule of law

 
Law Encyclopedia: Rule of Law
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This entry contains information applicable to United States law only.

Rule according to law; rule under law; or rule according to a higher law.

The rule of law is an ambiguous term that can mean different things in different contexts. In one context the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context the term means rule under law. No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems.

Rule according to Law

The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles. A distinction is sometimes drawn between power, will, and force on the one hand, and law on the other. When a government official acts pursuant to an express provision of a written law, he acts within the rule of law. But when a government official acts without the imprimatur of any law, she does so by the sheer force of her will and power.

Under the rule of law, no person may be prosecuted for an act that is not punishable by law. When the government seeks to punish someone for an offense that was not deemed criminal at the time it was committed, the rule of law is violated because the government exceeds its legal authority to punish. The rule of law requires that government impose liability only insofar as the law will allow. Government exceeds its authority when a person is held to answer for an act that was legally permissible at the outset but was retroactively made illegal. This principle is reflected by the prohibition against ex post facto laws in the U.S. Constitution.

For similar reasons, the rule of law is abridged when the government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government official, the less they are based on law.

For example, the Due Process Clause of the Fifth and Fourteenth Amendments requires that statutory provisions be sufficiently definite to prevent arbitrary or discriminatory enforcement by a prosecutor. Government officials must not be given unfettered discretion to prosecute individuals for violating a law that is so vague or of such broad applicability that evenhanded administration is not possible. Thus, a Florida law that prohibited vagrancy was held void for vagueness because it was so generally worded that it encouraged erratic prosecutions and made possible the punishment of normally innocuous behavior (Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 [1972]).

Well-established and clearly defined laws allow individuals, businesses, and other entities to govern their behavior accordingly (United States v. E.C. Investments, Inc., 77 F. 3d 327 [9th Cir. 1996]). Before the government may impose civil or criminal liability, a law must be written with sufficient precision and clarity that a person of ordinary intelligence will know that certain conduct is forbidden. When a court is asked to shut down a paint factory that is emitting pollutants at an illegal rate, for example, the rule of law requires the government to demonstrate that the factory owner failed to operate the business in accordance with publicly known environmental standards.

Rule under Law

The rule of law also requires the government to exercise its authority under the law. This requirement is sometimes explained with the phrase "no one is above the law." During the seventeenth century, however, the English monarch was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Commons and ignore rulings made by the House of Lords. In the eighteenth century, absolute sovereignty was transferred from the British monarchy to Parliament, an event that was not lost on the colonists who precipitated the American Revolution and created the U.S. Constitution.

Under the Constitution, no single branch of government in the United States is given unlimited power. The authority granted to one branch of government is limited by the authority granted to the coordinate branches and by the Bill of Rights, federal statutory provisions, and historical practice. The power of any single branch of government is similarly restrained at the state level.

During his second term, President Richard M. Nixon tried to place the executive branch of the federal government beyond the reach of legal process. When served with a subpoena ordering him to produce a series of tapes that linked him to the Watergate conspiracy and cover-up, Nixon refused to comply, asserting that the confidentiality of these tapes was protected from disclosure by an absolute and unqualified executive privilege. In United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Supreme Court disagreed, compelling the president to hand over the tapes because the Constitution forbids any branch of government from unilaterally thwarting the legitimate ends of a criminal investigation.

Members of the state and federal judiciary face a slightly different problem when it comes to the rule of law. Each day judges are asked to interpret and apply legal principles that defy clear exposition. Terms like "due process," "reasonable care," and "undue influence" are not self-defining. Nor do judges always agree about how these terms should be defined, interpreted, or applied. When judges issue controversial decisions, they are often accused of deciding cases in accordance with their own personal beliefs, be they political, religious, or philosophical, rather than in accordance with the law.

Scholars have spent centuries examining this issue. Some believe that because the law is written in such indefinite and ambiguous terms, all judicial decisions will inevitably reflect the personal predilections of the presiding judge. Other scholars assert that most laws can be interpreted in a neutral, objective, and apolitical fashion even though all judges may not agree on the appropriate interpretation. In either case the rule of law is better served when judges keep an open mind to alternative readings of constitutional, statutory, and common-law principles. Otherwise, courts run the risk of prejudging certain cases in light of their own personal philosophy.

Rule according to Higher Law

A conundrum is presented when the government acts in strict accordance with well-established and clearly defined legal rules and still produces a result that many observers consider unfair or unjust. Before the Civil War, for example, African Americans were systematically deprived of their freedom by carefully written codes that prescribed the rules and regulations between master and slave. Even though these slave codes were often detailed, unambiguous, and made known to the public, government enforcement of them produced unsavory results.

Do such repugnant laws comport with the rule of law? The answer to this question depends on when and where it is asked. In some countries the political leaders assert that the rule of law has no substantive content. These leaders argue that a government may deprive its citizens of fundamental liberties so long as it does so pursuant to a duly enacted law. At the Nuremberg trials, the political, military, and industrial leaders of Nazi Germany unsuccessfully advanced this argument as a defense to Allied charges that they had committed abominable crimes against European Jews and other minorities during World War II.

In other countries the political leaders assert that all written laws must conform with universal principles of morality, fairness, and justice. These leaders argue that as a necessary corollary to the axiom that "no one is above the law," the rule of law requires that the government treat all persons equally under the law. Yet the right to equal treatment is eviscerated when the government categorically denies a minimal level of respect, dignity, and autonomy to a single class of individuals. These unwritten principles of equality, autonomy, dignity, and respect are said to transcend ordinary written laws that are enacted by government. Sometimes known as natural law or higher law theory, such unwritten and universal principles were invoked by the Allied powers during the Nuremberg trials to overcome the defense asserted by the Nazi leaders.

The rule of law is a concept as old as Western civilization itself. In classical Greece Aristotle wrote that "law should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign in only those matters which law is unable, owing to the difficulty of framing general rules for all contingencies." In ancient Rome the Corpus Juris Civilis established a complex body of procedural and substantive rules, reflecting a strong commitment to the belief that law, not the arbitrary will of an emperor, is the appropriate vehicle for dispute resolution. In 1215 Magna Charta reined in the corrupt and whimsical rule of King John by declaring that government should not proceed except in accordance with the law of the land.

During the thirteenth century, Thomas Aquinas argued that the rule of law represents the natural order of God as ascertained through divine inspiration and human reason. In the seventeenth century, the English jurist Sir Edward Coke asserted that the "king ought to be under no man, but under God and the law." With regard to the legislative power in England, Coke said that "when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void." In the United States, Alexander Hamilton applied the rule of law to the judiciary when he argued in The Federalist, no. 78, that judges "have neither Force nor Will, but merely judgment."

Despite its ancient history, the rule of law is not celebrated in all quarters. The English philosopher Jeremy Bentham described the rule of law as "nonsense on stilts." The twentieth century has seen its share of political leaders who have oppressed disfavored persons or groups without warning or reason, governing as if no such thing as the rule of law existed. For many people around the world, the rule of law is essential to freedom.

See: Discretion in Decision Making; Due Process of Law; Judicial Review; Jurisprudence; Legal Realism; Moral Law.

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WordNet: rule of law
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Note: click on a word meaning below to see its connections and related words.

The noun has one meaning:

Meaning #1: a state of order in which events conform to the law

Wikipedia: Rule of law
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Mosaic representing both the judicial and legislative aspects of law. Woman on throne holds sword to chastise the guilty and palm branch to reward the meritorious. Glory surrounds her head, and the aegis of Minerva signifies armor of righteousness and wisdom.[1]

The rule of law, also called supremacy of law, means that the law is above everyone and it applies to everyone. Whether governor or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law.

Rule of law is a general legal maxim according to which decisions should be made by applying known principles or laws, without the intervention of discretion in their application.[2] This maxim is intended to be a safeguard against arbitrary governance. The word "arbitrary" (from the Latin "arbiter") signifies a judgment made at the discretion of the arbiter, rather than according to the rule of law.[3][4]

Generally speaking, law is a body of rules prescribed by the state subject to sanctions or consequences.[5] The predominant view is that the concept of "rule of law" per se says nothing about the "justness" of the laws themselves, but simply how the legal system operates.[6][7] As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with a "rule of law" — a situation which may be occurring in several modern dictatorships. The "rule of law" or Rechtsstaat may be a necessary condition for democracy, but it is not a sufficient condition.[8]

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History

 
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The rule of law is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote:

Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.[9]

Likewise, Aristotle endorsed the rule of law, writing that "law should govern", and those in power should be "servants of the laws."[10] The ancient concept of rule of law is to be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that under the rule of law the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion."[11]

An allusion to the rule of law applying to the Median kingdom is found in the book of Daniel, where it is stated that not even that king can arbitrarily alter a law he has previously enacted:

The thing stands fast, according to the law of the Medes and Persians, which cannot be revoked. (Daniel 6:12)

The supremacy of law is not an exclusively western notion. For example, it was developed by Islamic jurists before the twelfth century, so that no official could claim to be above the law, not even the caliph.[12] However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.

In 1215 AD, a similar development occurred in England: King John placed himself and England's future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta.[13]

Subsequently, two of the first modern authors to give the principle theoretical foundations were Samuel Rutherford in Lex, Rex (1644) and John Locke in his Second Treatise of Government (1690). Later, the principle was further entrenched by Montesquieu in The Spirit of the Laws (1748).[14]

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."[15] In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."[16]

Differing 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.[17] Among modern legal theorists, most views on this subject fall into three general categories: the formal approach, the substantive approach, and the functional approach.[7][18]

The "formal" interpretation is more widespread than the "substantive" interpretation, and formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law.[7] This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights. The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.

In addition to the formal and substantive interpretatations of the term "rule of law", another leading interpretation is the functional definition, which is consistent with the traditional English meaning that contrasts the "rule of law" with the "rule of man."[18] 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".[18] The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.[18]

There are other views as well. They include the minority view that the rule of law implies a guarantee of democracy.[7]

Status in various jurisdictions

The rule of law has been considered as one of the key dimensions that determines the quality and good governance of a country.[19] 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."[19] 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.[20]

United States

2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents have confidence in and abide by the rules of society. Colors range from green (top quartile), to yellow (middle high), orange (middle low) and red (bottom quartile).

All government officers of the United States, including the President, the Justices of the Supreme Court, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader.[21] At the same time, the federal government does have considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutional rights of individuals. Likewise, the judicial branch has a degree of judicial discretion,[22] 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.[23] 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.[24]

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."[25]

Asia

Many Asian cultures traditionally view good governance as rule by leaders who are benevolent and virtuous, and therefore rule of law is a governmental principle that many Asians hesitate to embrace. One study indicates that throughout East Asia, only South Korea, Japan, and Hong Kong have societies that are robustly committed to a law-bound state.[26] 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?[27]

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.[28]

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.[29] 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."[30]

Japan had centuries of tradition prior to World War II during which there were laws, but they were not a central organizing principle for society, and they did not constrain the powers of government. As the twenty-first century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.[31]

Conferences and scholarly works

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.[32]

The influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies.[33] 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".[33] Dicey emphasized three aspects of the rule of law: (1) no one can be punished or made to suffer except for a breach of law proved in an ordinary court; (2) no one is above the law and everyone is equal before the law regardless of social, economic, or political status; and (3) the rule of law includes the results of judicial decisions determining the rights of private persons.[34]

See also

Footnotes

  1. ^ Cole, John et al. The Library of Congress, page 113 (W. W. Norton & Company 1997).
  2. ^ Black's Law Dictionary page 1196 (Fifth Edition, 1979):

    Rule of Law. A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a "rule," because in doubtful or unforeseen cases it is a guide or norm for their decision. The rule of law, sometimes called "the supremacy of law", provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application.

  3. ^ Online Etymology Dictionary: "'deciding by one's own discretion,' from L. arbitrarius, from arbiter (see arbiter). The original meaning gradually descended to ‘capricious’ (1646) and ‘despotic’ (1642).”
  4. ^ Curtis, Thomas. The London Encyclopaedia, page 565 (1829): “Arbitrary, and the words more immediately connected with it, signify that the decision of the arbiter is made in consequence of his own uncontrolled will, or in consequence of reasons which do not appear.”
  5. ^ Black's Law Dictionary page 795 (Fifth Edition, 1979).
  6. ^ Kahn, Paul. The Reign of Law, pages 151-153 (Yale University Press 2002): “the rule of law is not necessarily a virtuous rule….to ask whether the present rule of law was unjust….invites a moral perspective outside the rule of law.”
  7. ^ a b c d Tamanaha, Brian. “The Rule of Law for Everyone?”, Current Legal Problems, volume 55, via SSRN (2002):

    Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. But there are other views as well. Some believe that democracy is part of the rule of law.

  8. ^ Brown, Nathan. The Rule of Law in the Arab World, page 241 (Cambridge University Press, 1997).
  9. ^ Cooper, John et al. Complete Works By Plato, page 1402 (Hackett Publishing, 1997).
  10. ^ Aristotle, Politics 3.16: "it is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws."
  11. ^ Tamanaha, Brian. On the Rule of Law, page 3 (Cambridge University Press, 2004).
  12. ^ Weeramantry, C. Justice without Frontiers, page 132 (Martinus Nijhoff Publishers 1997).
  13. ^ U.S. National Archives.
  14. ^ Tamanaha, Brian. On the Rule of Law, page 47 (Cambridge University Press, 2004).
  15. ^ Lieberman, Jethro. A Practical Companion to the Constitution, page 436 (University of California Press 2005).
  16. ^ Massachusetts Constitution, Part The First, art. XXX (1780).
  17. ^ Shklar, Judith and Hoffman, Stanley. Political Thought and Political Thinkers, page 21 (University of Chicago Press, 1998).
  18. ^ a b c d Stephenson, Matthew. "Rule of Law as a Goal of Development Policy", World Bank Research (2008).
  19. ^ a b Kaufman, Daniel et al. "Governance Matters VI: Governance Indicators for 1996-2006, World Bank Policy Research Working Paper No. 4280" (July 2007).
  20. ^ "Governance Matters 2008", World Bank.
  21. ^ Vile, John. A Companion to the United States Constitution and its Amendments, page 80 (Greenwood Publishing Group, 2006).
  22. ^ 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."
  23. ^ Harrison, John. "Substantive Due Process and the Constitutional Text", Virginia Law Review, Volume 83, page 493 (1997).
  24. ^ Gedicks, Frederick. "An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment", Emory Law Journal, Vol. 58, pages 585-673 (2009).
  25. ^ Snowiss, Sylvia. Judicial Review and the Law of the Constitution, pages 41-42 (Yale University Press 1990).
  26. ^ Chu, Yun-Han et al. How East Asians View Democracy, pages 31-32.
  27. ^ Thi, Awzar. “Asia needs a new rule-of-law debate”, United Press International, UPIAsia.com (2008-08-14).
  28. ^ Peerenboom, Randall in Asian Discourses of Rule of Law, page 39 (Routledge 2004).
  29. ^ Baxi, Upendra in Asian Discourses of Rule of Law, pages 336-337 (Routledge 2004).
  30. ^ Robinson, Simon. “For Activist Judges, Try India”, Time Magazine (2006-11-08).
  31. ^ Green, Carl. "Japan: 'The Rule of Law Without Lawyers' Reconsidered", Speech to the Asia Society (2001-03-14).
  32. ^ Goldsworth, Jeffrey. “Legislative Sovereignty and the Rule of Law" in Sceptical Essays on Human Rights, page 69 (Tom Campbell, Keith D. Ewing, Adam Tomkins eds. Oxford University Press 2001).
  33. ^ a b Raz, Joseph. "The Rule of Law and It's Virtue", The Law Quarterly Review, volume 93, page 195 (1977); reprinted by Culver, Keith. Readings in the Philosophy of Law, page 13 (Broadview Press, 1999).
  34. ^ Palekar, S. Comparative Politics and Government 64-65 (PHI Learning 2009).

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