Rule of law

From Wikipedia, the free encyclopedia

"Rule of Law" redirects here. For other uses, see Rule of Law (disambiguation).

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. Glorysurrounds her head, and the aegis ofMinerva signifies the armor of righteousness and wisdom. [1]

Part of a series on

Politics

Primary topics[show]

Political systems[show]

Academic disciplines[show]

Public administration[show]

Policy[show]

Organs of government[show]

Related topics[show]

Subseries[show]

Politics portal

The rule of law is the legal principle that law should govern a nation, as opposed to being
governed by arbitrary decisions of individual government officials. It primarily refers to the
influence and authority of law within society, particularly as a constraint upon behavior,
including behavior of government officials. The phrase can be traced back to 16th century
Britain, and in the following century the Scottish theologian Samuel Rutherford used the
phrase in his argument against thedivine right of kings. The rule of law was further
popularized in the 19th century by British juristA. V. Dicey. The concept, if not the phrase,
was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".
[2]

[3]

[4]

Rule of law implies that every citizen is subject to the law, including law makers themselves.
In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship,
or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in
both democracies and dictatorships, 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. Government based upon the rule of law is called nomocracy.
Contents
[hide]

1History
o

1.1Antiquity

1.2Middle Ages

1.3Early modern period

2Meaning and categorization of interpretations

3Status in various jurisdictions

3.1Europe

3.2United States

3.3Asia
4Organizations

4.1International Commission of Jurists

4.2United Nations

4.3International Bar Association

4.4World Justice Project

4.5The International Development Law Organization (IDLO)

5In relation to economics

6See also
o

6.1By jurisdiction

6.2Legal scholars

7Notes and references

8Bibliography

9External links

History[edit]
Although credit for popularizing the expression "the rule of law" in modern times is usually
given to A. V. Dicey, development of the legal concept can be traced through history to
many ancient civilizations, including ancient Greece, China, Mesopotamia, India andRome.
[5][6]

[7]

Antiquity[edit]
In the West, the ancient Greeks initially regarded the best form of government as rule by the
best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king,
who was above the law. 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." More than
Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond
guarding and serving the laws. In other words, Aristotle advocated the rule of law:
[8]

[8]

[9]

[8]

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]

According to the Roman statesman Cicero, "We are all servants of the laws in order that we
may be free." 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.
[10]

[5]

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. 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.
[11]

[12]

There has recently been an effort to reevaluate the influence of the Bible on Western
constitutional law. In the Old Testament, there was some language in Deuteronomy imposing
restrictions on the Jewish king, regarding such things as how many wives he could have,
and how many horses he could own for his personal use. According to Professor Bernard M.
Levinson, "This legislation was so utopian in its own time that it seems never to have been
implemented...." The Deuteronomic social vision may have influenced opponents of
thedivine right of kings, including Bishop John Ponet in sixteenth-century England.
[13]

[14]

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 thecaliph. However, this was not a reference
to secular law, but to Islamic religious law in the form of Sharia law.
[15]

[citation needed]

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. This foundation for constitution was
carried into the Constitution of the United States.
[16][17]

Early modern period[edit]

See also: Rechtsstaat
The first known use of this English phrase occurred around 1500 A.D. 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:
[18]

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....
[19]

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 debed 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). The title, Latin for "the law is king", subverts the
traditional formulation rex lex ("the king is law"). John Locke also discussed this issue in
his Second Treatise of Government (1690). The principle was also discussed
by Montesquieu in The Spirit of the Laws (1748). The phrase "rule of law" appears
in Samuel Johnson's Dictionary (1755).
[3]

[20]

[21]

[22]

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." In 1780, John Adams enshrined
this principle in the Massachusetts Constitutionby seeking to establish "a government of laws
and not of men."
[23]

[24]

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 bydivine right.
Despite wide use by politicians, judges and academics, the rule of law has been described
as "an exceedingly elusive notion". 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. 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.
[25]

[26]

[27]

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. Still, there are other views as well. Some believe that
democracy is part of the rule of law.
[28]

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. 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.
[26]

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." 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". 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. The
rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.
[28]

[28]

[29]

[28]

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."
[30]