Rule of lawFrom 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]

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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.[2] 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.[3] 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".[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

o 1.2Middle Ages

o 1.3Early modern period

2Meaning and categorization of interpretations

3Status in various jurisdictions

o 3.1Europe

o 3.2United States

o 3.3Asia

4Organizations

o 4.1International Commission of Jurists

o 4.2United Nations

o 4.3International Bar Association

o 4.4World Justice Project

o 4.5The International Development Law Organization (IDLO)

5In relation to economics

6See also

o 6.1By jurisdiction

o 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,[5][6] development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India andRome.[7]

Antiquity[edit]

In the West, the ancient Greeks initially regarded the best form of government as rule by the best men.[8] Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.[8] 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." [9] More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.[8] In other words, Aristotle advocated the rule of law:

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."[10] 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.[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. [11] 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.[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...."[13] The Deuteronomic social vision may have influenced opponents of thedivine right of kings, including Bishop John Ponet in sixteenth-century England.[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.[15] However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.[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.[16][17] This foundation for constitution was carried into the Constitution of the United States.

Early modern period[edit]See also: Rechtsstaat

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

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).[3]The title, Latin for "the law is king", subverts the traditional formulation rex lex ("the king is law").[20] 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).[21] The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755).[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."[23] In 1780, John Adams enshrined this principle in the Massachusetts Constitutionby seeking to establish "a government of laws and not of men."[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".[25] 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.[26] 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.[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.[26] 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.

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."[28] 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".[28] 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.[29] The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable. [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]