Governments need to have good laws, institutions and processes in place to ensure accountability, stability, equality and access to justice for all. This ultimately leads to respect for human rights and the environment. It also helps lower levels of corruption and instances of violent conflict.
But what exactly is it about the above examples, which enables us to so quickly and certainly reject the societies depicted? What is the common feature of each example that makes the society pictured so intrinsically abhorrent? What is the essential feature of our democratic society which is absent in each of the examples? The answer to all of these questions— the reason that we are instinctively able and compelled to denounce the societies illustrated in the examples — is that each of the examples depicts a society operating without the Rule of Law.
Defining the Rule of Law is, in many ways, like trying to define the meaning of life. Like the meaning of life, the Rule of Law is a basic, essential, and fundamental concept that has been wrestled with by philosophers, individuals, and societies for centuries and that, in the end, can be different things to different people.
Also like the meaning of life, however, the main problem with the Rule of Law lies not so much in knowing what it is, but rather in putting that knowledge into words. Thousands of books and articles have been written by people in various fields of study or enterprise, all trying to capture in words the essence of the Rule of Law. Some of the most concise, comprehensive, and understandable descriptions of this principle, however, have come from the Supreme Court of Canada.
But exactly how does the Rule of Law lend order to society? What are the components or elements of the Rule of Law which lead to the structure and accountability described by the Supreme Court of Canada? Once again, while numerous scholars have expressed countless opinions about the precise content of the Rule of Law, some basic, generally accepted components of the Rule of Law can be identified.
In one of the first attempts to articulate exactly what is meant by the Rule of Law, A. Dicey said that the rule of law contains three elements:. Instead of society being ruled by the desires or interests of a particular person or group, which desires and interests may fluctuate daily, society should be ruled by law.
Among other things, a society that is ruled by law must have procedures in place for ensuring that people in positions of power are not able to arbitrarily manipulate social order.
So, laws must be created only in accordance with established and agreed upon procedures; laws cannot be created arbitrarily and without warning to the public.
Laws must be equally applied to both the law-makers and ordinary citizens. Laws must be applied in predictable and established fashions, rather than depending solely on the whims of the law-makers or law-enforcers. In hearing that the Rule of Law is a principle that mandates objectivity in our legal system, many people argue that this principle is not followed in our country because the law, in fact, frequently applies differently to different people.
For example, one person charged with murder might be given a penalty that is completely different than another person charged with the same crime. Similarly, one person injured in a car accident might be awarded far more compensation than another person who has suffered similar injuries.
A police officer may issue a speeding ticket to one driver, but not to another driver who committed the same offence. The Rule of Law, however, does not necessarily require that all people be treated identically. Sometimes situations can be governed and disputes settled by informal social norms rather than by positive law, formally enacted and enforced Ellickson Opinions differ as to whether this should be regarded as something altogether different from the Rule of Law.
On the one hand, it looks like a genuine alternative, and little is gained by assimilating its desirable features, such as they are, to Rule-of-Law requirements. On the other hand, it does have something in common with understandings of customary law and conceptions of the Rule of Law like that of Hayek that try to separate themselves from enactment and legislation. This makes social participation in the integrity and upholding of law more likely Cooter The closer this mapping, the less of an investment there has to be in formal legal promulgation: ordinary know-how can become a reliable guide to legal knowledge.
However, one has to be very cautious with this. Modern law is inevitably technical in ways that far outstrip the possibilities of intuitive understanding Weber []: — The best that can be hoped for is some sort of occasional consonance between enacted law and informal understandings, and the sporadic character of that may well heighten rather than reduce unpredictability. Is it reasonable to use the Rule of Law to evaluate the way a society responds to emergencies?
It is often thought that emergencies require forms of state action that are more peremptory and less procedurally laborious than those required in normal times. As a matter of fact, a number of possibilities have been discussed Scheuerman One is to insist, in the name of the Rule of Law, that existing constitutional safeguards should remain in force; that, after all, is what they were designed for and these situations are where they are most urgently needed.
Alternatively, in emergencies, one might rely on a general spirit of flexibility and circumstantial sensitivity in state action that is encouraged even in normal times. On this second option, the Rule of Law does not present itself as a major constraint on the flexibility of state action in face of danger.
As a third option, one might seek to preserve something like the Rule of Law by laying down in advance specific legal rules to govern emergencies—rules that suspend ordinary civil liberties guarantees for example or authorize widespread discretion on the part of officials to undertake action that would normally be governed by general rules of law.
Machiavelli proposed a version of this in his Discourses , extolling the institution of dictator in the Roman republic. This option has the advantage of predictability; but its disadvantage is that it endorses a sort of Rule-of-Law- lite , which may eventually infect or supersede the conception of the Rule of Law that is supposed to be normally applicable. The Rule of Law applies not only within national polities but also increasingly between them, but in this arena its use remains under-theorized for a helpful discussion, see Crawford Much of the work that has been done on the international Rule of Law simply adopts uncritically the perspective of those who say, at the national level, that the Rule of Law requires determinacy, clarity, and predictability see Chesterman But this may be misconceived when we are talking about states rather than individuals as the subjects of law Waldron b.
States are in a much better position to be informed of what their legal requirements are than individual men and women in society, since they are parties to the treaties and practices that establish international law. Maybe, though, this point does not hold to the same extent when we consider the murky depths of customary international law. Anyway, the liberty of an individual state is not such an important value as the liberty of an individual person.
It is not clear that national states need protection from international law and the power that it represents in the way that ordinary men and women need protection from the exercise of political power in society. Moreover, in areas like international human rights law, any presumption based on the Rule of Law in favor of the liberty of national states will tend to have detrimental effects on the liberty or well-being of individual men and women.
We have to be careful therefore that invocation of the Rule of Law in the international realm does not undermine the values that are supposed to be secured by this ideal within national polities. One additional point. It remains controversial whether international institutions themselves—like the United Nations and its agencies—should be bound by the Rule of Law. This odd because these agencies are among the most vociferous advocates of the Rule of Law so far as its application to national states is concerned.
The reluctance here stems in large part from an estimation of the importance of diplomatic immunity. UN officials worry that if they and their agencies are held legally liable for malfeasances of various kinds associated with peace-keeping activities, there is a danger that the whole basis of international action might unravel.
The danger is probably exaggerated, however, and those who make this argument would not for a moment countenance a similar argument in the sphere of national states.
The Rule of Law is often cited as the key to nation-building and to the establishment of new democracies. Indeed it is often argued e. It is said that a legal system in a developing country dominated by legislative action will neither inspire the confidence nor establish the stability that modern governance and investment require. For discussion of these arguments, see Carothers and—more critically—Carothers This raises once more the question of relation between the Rule of Law and legislation—only now it takes us also in the direction of considering an rather uncomfortably direct trade-off between Rule of Law values and democracy.
Finally, an analytic question. What is the relation between the Rule of Law and the concept of law? A case can be made—controversial, no doubt—for bringing the two of them together see Waldron and also Simmonds The concept of law could be understood to embrace the fundamental elements of legality, though this identification looks less plausible the more substantive the conception of the Rule of Law is held to be.
Otherwise we lose our sense of the institutional distinctiveness of law as a way of ruling a society. We saw earlier that Lon Fuller and envisaged a connection along these lines. So, in his later work did Ronald Dworkin.
Dworkin asked us to consider a situation in which judges and lawyers were grappling with hard issues of interpretation or with difficult dilemmas posed by multiple sources of law. He said that in such cases, we might say that what was required as a matter of law might be different from what was required as a matter of justice. That is a familiar separation even if Dworkin thought it was narrower and more blurred than most legal positivists believed.
But he said, it would make no sense to say that what was required as a matter of legality or respect for the Rule of Law was different from what the legal solution was to this case.
To figure out the legal solution we have to address the various legal and political materials precisely in light of our commitment to legality. A conception of legality is … a general account of how to decide which particular claims are true…. We could make little sense of either legality or law is we denied this intimate connection. Dworkin 24—5. However this is not the received position.
According to Joseph Raz and others you cannot understand what the Rule of Law is unless you already and independently understand what law is and the characteristic evils that law is likely to give rise to which the Rule of Law tries to prevent.
On this account, legality represents a particular set of concerns about law that have emerged in our civilization.
Bentham, Jeremy constitutionalism Hayek, Friedrich law: and ideology liberalism limits of law nature of law nature of law: legal positivism. One Ideal among Others 2.
The Contestedness of the Rule of Law 3. History of the Rule of Law 3. Rule of Law and Rule by Law 5. Formal, Procedural and Substantive Requirements 5. The Values Underlying the Rule of Law 7. Opposition to the Rule of Law 8. Controversies about Application 8. One Ideal among Others The Rule of Law is one ideal in an array of values that dominates liberal political morality: others include democracy, human rights, social justice, and economic freedom.
The Contestedness of the Rule of Law The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc , or purely discretionary manner on the basis of their own preferences or ideology.
History of the Rule of Law The Rule of Law has been an important ideal in our political tradition for millennia, and it is impossible to grasp and evaluate modern understandings of it without fathoming that historical heritage. Though he formulated the question of whether it was better to be ruled by the best man or the best laws, he approached that question realistically, noting that it depended not only on the type of law one was considering but also on the type of regime that enacted and administered the law in question Politics b But Aristotle did maintain that law as such had certain advantages as a mode of governance.
Moreover, laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice. Rhetoric b There were, he conceded, some cases so fraught with difficulty that they could not be handled by general rules—cases that required the focused insight of particular judges; he used the term epieikeia sometimes translated as equity. He associated this sort of respect with a monarchy ruling by law, as opposed to despotism: In monarchies, the administering of a justice that hands down decisions not only about life and goods, but also about honor, requires scrupulous inquiries.
For Dicey, the key to the Rule of Law was legal equality: [W]ith us no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. His first principle of the Rule of Law was: 13800o 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.
Dicey []: This seems fine if we are talking about the imposition of criminal sanctions. But whether this connection held or not, he also wanted to insist that the complete absence of respect for formal criteria of legality might deprive a system of power of its status as law: When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretense of legality—when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law.
But the two accounts of the moral significance of law were connected in a way that John Finnis explained: A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesis, holds in contempt.
Rule of Law and Rule by Law Some theorists draw a distinction between the Rule of Law and what they call rule by law see e. Formal, Procedural and Substantive Requirements Theorists of the Rule of Law are fond of producing laundry lists of the principles it comprises. We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve I have adapted this list from Tashima : a hearing by an impartial and independent tribunal that is required to administer existing legal norms on the basis of the formal presentation of evidence and argument; a right to representation by counsel at such a hearing a right to be present, to confront and question witnesses, and to make legal argument about the bearing of the evidence and the various legal norms relevant to the case; and a right to hear reasons from the tribunal when it reaches its decision, which are responsive to the evidence and arguments presented before it.
The World Justice Project in quoted Arthur Chaskalson, former Chief Justice of South Africa, to this effect: [T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. Hayek Hayek also maintained that requirements of clarity, prospectivity and so on make an important contribution to predictability, which he thought was indispensable for individual freedom.
He quoted Lord Mansfield to the effect that [i]n all mercantile transactions the great object should be certainty: … it is of more consequence that a rule should be certain, than whether the rule is established one way rather than the other. Bingham 38 These conceptions claim to bring a certain air of reality to our discussions of freedom. Opposition to the Rule of Law No account of the Rule of Law is complete if it does not mention the ways in which this ideal is deprecated.
From his perspective, which extolled the application of focused intelligence and insight by those in power, insistence upon the use of law in government was like a stubborn, stupid person who refuses to allow the slightest deviation from or questioning of his own rules, even if the situation has in fact changed and it turns out to be better for someone to contravene these rules.
Controversies about Application As well as these debates about the value of the Rule of Law there is, within the camp of those who stand for legality, incessant controversy about what the Rule of Law requires. Hayek suggests that [o]ne could write a history of the decline of the Rule of Law … in terms of the progressive introduction of these vague formulas into legislation and jurisdiction. Dworkin 24—5 However this is not the received position. Bibliography Aristotle, The Politics c.
Barro, R. Root eds. Bentham, J. Hart ed. Ogden ed. This was originally published in French translation done by Etienne Dumont in and translated back into English in by Richard Hildreth , the latter is the translation used in the Ogden edition. Bingham, T. Carothers, T. Cass, R. Colombatto, ed. Chesterman, S. Cooter, R. Cover, R. Craig, P. Crawford, J.
Davis, K. Dicey, A. Page numbers are from the version based on the 8 th edition , Indianapolis: Liberty Classics. Ellickson, R. Endicott, T. Epstein, R.
Finnis, J. Fortescue, J. Fuller, L. Hamilton, A. Madison, and J. Pocock ed. Hart, H. Hayek, F. Henderson, L. Hobbes, T. Warrender ed. Tuck ed. Locke, J. Laslett ed. Machiavelli, N. Mansfield and N. Tarcov ed. Marmor, A. Montesquieu, C. Cohler, C. Miller, and H. Stone eds. Nozick, R. Oakeshott, M. Plato, The Statesman , c. Posner, E, and A.
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