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Rule of law: West's Encyclopedia of American Law (Full Article) from Answers.com

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.

The rule of law, in its most basic form, is the principle that no one is above the law. Thomas Paine stated in his pamphlet Common Sense (1776): "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."

In England, the issuing of the Magna Carta was a prime example of the "rule of law." The Great Charter forced King John to submit to the law and succeeded in putting limits on feudal fees and duties. Another earlier example was Islamic law and jurisprudence, which recognized the equal subjection of all classes, including caliphs and sultans, to the ordinary law of the land.[1]

Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy. 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).

In continental Europe and legal thinking, the rule of law has frequently, but not always, been associated with a Rechtsstaat. According to modern Anglo-American thinking, hallmarks of adherence to the rule of law commonly include a clear separation of powers, legal certainty, the principle of legitimate expectation and equality of all before the law.

The concept is not without controversy, and it has been said that "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use".[2]

Overview

The contrast between the rule of men and the rule of law is first found in Plato's Statesman and Laws and subsequently in Aristotle's Politics, where the rule of law implies both obedience to positive law and formal checks and balances on rulers and magistrates. The rule of law was later present in early Islamic law and jurisprudence, which recognized the equal subjection of all classes to the ordinary law of the land, where no person is above the law and where officials and private citizens are under a duty to obey the same law. There were a number of cases where even Caliphs had to appear before Qadi (judges) as they prepared to take their verdict.[1]

In his treatise, Law of the Constitution (10th Ed., 1959), pp. 187, et seq., Dicey identified three principles which together establish the rule of law: (1) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts."

— Halsbury's Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6, footnote 1
... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.
— Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.

Another definition can be found at Halsbury's Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6

The legal basis of government gives rise to the principle of legality, sometimes referred to as the rule of law. This may be expressed as a number of propositions, as described below.
(1) The existence or non-existence of a power or duty is a matter of law and not of fact, and so must be determined by reference either to the nature of the legal personality of the body in question and the capacities that go with it, or to some enactment or reported case. As far as the capacities that go with legal personality are concerned, many public bodies are incorporated by statute and so statutory provisions will define and limit their legal capacities. Individuals who are public office-holders have the capacities that go with the legal personality that they have as natural persons. The Crown is a corporation sole or aggregate and so has general legal capacity, including (subject to some statutory limitations and limitations imposed by European law) the capacity to enter into contracts and to own and dispose of property. The fact of a continued undisputed exercise of a power by a public body is immaterial, unless it points to a customary power exercised from time immemorial. In particular, the existence of a power cannot be proved by the practice of a private office.
(2) The argument of state necessity is not sufficient to establish the existence of a power or duty which would entitle a public body to act in a way that interferes with the rights or liberties of individuals. However, the common law does recognise that in case of extreme urgency, when the ordinary machinery of the state cannot function, there is a justification for the doing of acts needed to restore the regular functioning of the machinery of government.
(3) If effect is to be given to the doctrine that the existence or non-existence of a power or duty is a matter of law, it should be possible for the courts to determine whether or not a particular power or duty exists, to define its ambit and provide an effective remedy for unlawful action. The independence of the judiciary is essential to the principle of legality. The right of access to the courts can be excluded by statute, but this is not often done in express terms. A person whose civil or political rights and freedoms as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) have been infringed is entitled under the Convention to an effective right of access to the courts and an effective national remedy. On the other hand, powers are often given to bodies other than the ordinary courts, to decide questions of law without appeal to the ordinary courts, and sometimes in such terms that their freedom from appellate jurisdiction extends to their findings of fact or law on which the existence of their powers depends.
(4) Since the principal elements of the structure of the machinery of government, and the powers and duties which belong to its several parts, are defined by law, its form and course can be altered only by a change of law. Conversely, since the legislative power of Parliament is unrestricted, save where European Community law has primacy, its form and course can at any time be altered by Parliament. Consequently there are no powers or duties inseparably annexed to the executive government.

2006 World Map of the Rule of Law Index, which measures 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).

In American law, the most famous exposition of the same principle was drafted by John Adams for the constitution of the Commonwealth of Massachusetts, in justification of the principle of separation of powers:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
— Massachusetts Constitution, Part The First, art. XXX (1780).

The last phrase, "to the end it may be a government of laws and not of men," has been quoted with approval by the U.S. Supreme Court and every state supreme court in the United States.

A similar concept is found in Common Sense by Thomas Paine:

. . . the world may know, that so far as we approve of monarchy, 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.

The concept "rule of law" is generally associated with several other concepts, such as:

  • Nullum crimen, nulla poena sine praevia lege poenali — No ex post facto laws
  • Presumption of innocence — All individuals are "presumed innocent until proven otherwise"
  • Legal equality — All individuals are given the same rights without distinction to their social stature, religion, political opinions, etc. That is, as Montesquieu would have it, "law should be like death, which spares no one."
  • Habeas corpus — in full habeas corpus ad subjiciendum, a Latin term meaning "you must have the body to be subjected (to examination)". A person who is arrested has the right to be told what crimes he or she is accused of, and to request that his or her custody be reviewed by judicial authority. Persons unlawfully imprisoned have to be freed.

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. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a "rule of law", a situation which many argue is applicable to 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.[3]

The rule of law is an ancient ideal first posited by Plato as grounded in divine reason and so inherent in the natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it. 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. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft.

In the Anglo-American legal tradition rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the government. 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.

More recently, the rule of law has been considered as one of the key dimensions that determines the quality and good governance of a country.[4] 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."[5] Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries.

Declaration of Delhi

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.

Lord Bingham's sub-rules

In his speech on November 16, 2006, for the Sir David Williams Lecture in the Law Faculty of Cambridge University [6], Lord Bingham of Cornhill postulated eight sub-rules of the rule of law. It should be noted that Bingham takes a strongly substantive view on the rule of law, and that these sub-rules would be subject to fierce criticism by journalists.

  • the law must be accessible and so far as possible intelligible, clear and predictable
  • questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion
  • the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation
  • the law must afford adequate protection of fundamental human rights
  • means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve
  • ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
  • adjudicative procedures provided by the state should be fair
  • the state must comply with its obligations in international law, the law which, whether deriving from treaty or international custom and practice, governs the conduct of nations.

Authoritarianism

Rule of law is frequently opposed by authoritarian and totalitarian states. The explicit policy of such governments, as evidenced in the Night and Fog decrees of Nazi Germany, is that the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations. Dictatorships generally establish secret police forces, which are not accountable to established laws, which can suppress threats to state authority.

Critique

Marxist theory asserts the capitalist state is an instrument of oppression of the proletariat at the hands of the bourgeoisie, which set the laws to suit itself. Following this, some critical theorists analyze the "rule of law" as a judicial fiction which aims at disguising the reality of violence and, in Marxist terminology, "class struggle". This theory presumes that the "bourgeoisie" holds the power to set the laws.

The Italian philosopher Giorgio Agamben argues that the state of exception is at the core of the concept of sovereignty, and not the "rule of law" as liberal thinkers have it. While the sovereign claims to follow the "rule of law", any protection the people have, however fundamental, can be jettisoned once the government finds it convenient to do so.

Those that take formal conceptions of the rule of law have criticised more substansive conceptions which question whether a law is "good or bad".[7]

References and notes

  1. ^ a b Weeramantry, Judge Christopher G. (1997), Justice Without Frontiers: Furthering Human Rights, Brill Publishers, 132 & 135, ISBN 9041102418
  2. ^ Judith N. Shklar (1987), "Political Theory and the Rule of Law", in Hutchinson and Monahan (eds.) The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), p. 1. For a discussion of Shklar's view, see J. Waldron (2002), "Is the Rule of Law an Essentially Contested Concept? (in Florida)", in Law & Philosophy, vol. 21/2, 2002. See also the entry on "essentially contested concept".
  3. ^ 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
  4. ^ Governance Matters VI: Governance Indicators for 1996-2006
  5. ^ A Decade of Measuring the Quality of Governance.
  6. ^ 'The Rule of Law' Lecture Recording - Centre for Public Law
  7. ^ Joseph Raz: The Rule of Law and It's Virtue (1977)

See also

Further reading

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

External links

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