Rule of law

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The rule of law, also called supremacy 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.[1] The 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.[2][3]

The predominant view is that the concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law.[4][5] 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. However, the "rule of law" or Rechtsstaat is considered a prerequisite for democracy, and as such, has served as a common basis for human rights discourse between countries such as the People's Republic of China and the West.[6]

Contents

[edit] Overview

Different people have different interpretations about what the "rule of law" means. Among modern legal theorists, three major views are known as the formal approach, the substantive approach, and the functional approach.[5][7]

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.[5] 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. There are other minority views as well, including the view that the rule of law impliedly guarantees democracy.[5]

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."[7] 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".[7] The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.[7]

[edit] Status under the United States Constitution

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.[8] At the same time, the legislative branch has considerable discretion as to what laws 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, 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.[9] 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.[10]

[edit] History

The rule of law is an ancient ideal, discussed by Greek philospohers such as Plato:

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.[11]

Samuel Rutherford was one of the first modern authors to give the principle theoretical foundations, in Lex, Rex (1644), and later Montesquieu in The Spirit of the Laws (1748).

The concept of impartial rule of law is found in the Chinese political philosophy of legalism, but the totalitarian nature of the regime that this produced had a profound effect on Chinese political thought which at least rhetorically emphasized personal moral relations over impersonal legal ones.[citation needed] Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft.[citation needed] In China, the discourse around rule of law centers on the notion that laws ultimately enhance the power of the state and the nation, which is why the Chinese government adopts the principle of rule by law rather than rule of law.[citation needed]

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.[12]

In the twenty-first century, the rule of law has been considered as one of the key dimensions that determines the quality and good governance of a country.[13] 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."[14] Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries.

[edit] Views of Joseph Raz

The influential political theorist Joseph Raz identified several constituent principles that comprise his conception of the rule of law.[15] 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. According to Raz, some of the most important 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 to judicial review 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 rule of law "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".[15]

[edit] See also

[edit] Footnotes

  1. ^ 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.

  2. ^ 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).”
  3. ^ 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.”
  4. ^ 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.”
  5. ^ 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.

  6. ^ As regards the rule of law in China, see Five Years of China’s WTO Membership. EU and US Perspectives on China’s Compliance with Transparency Commitments and the Transitional Review Mechanism, Legal Issues of Economic Integration, Kluwer Law International, Volume 33, Number 3, pp. 267–270, 2006. by Paolo Farah
  7. ^ a b c d Stephenson, Matthew. "Rule of Law as a Goal of Development Policy", World Bank Research (2008).
  8. ^ Vile, John. A Companion to the United States Constitution and its Amendments, page 80 (Greenwood Publishing Group, 2006).
  9. ^ Harrison, John. "Substantive Due Process and the Constitutonal Text", Virginia Law Review, Volume 83, page 493 (1997).
  10. ^ 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).
  11. ^ Cooper, John et al. Complete Works By Plato, page 1402 (Hackett Publishing, 1997).
  12. ^ 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).
  13. ^ Governance Matters VI: Governance Indicators for 1996-2006
  14. ^ A Decade of Measuring the Quality of Governance.
  15. ^ 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).

[edit] Further reading

  • Craig, Paul. "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework" Public Law pp. 467–487 (1997)

[edit] External links

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