THE MANY MEANINGS OF THE

RULE OF LAW

Introduction• The rule of law is one of the pillars of modernity and widely

considered necessary for sustained economic development, implementation of democracy and the protection of human rights.

• The rule of law has a history and one of the features of the history is the manner in which the concept has been re-interpreted over time according to Mason 1995; Shapiro 1994; Shklar 1987.

• Those expression may referred to the doctrine, which some may say it is an ideology about how the government acts.

• This refers to the constitutional government instead of democratic government.

• This may conveys various versions of the term and meanings.

• It deals with the relationship between the doctrine and legal

institutions and the relationship between the doctrine and the

idea of rule by law.

• All states in the region have written constitutions and all are

committed to ruling according to announced intentions of the

constitution.

• This does not mean that all constitutions are the same in terms

of textual or the political functions and expectations of the

constituting document.

• The fundamental point is the history, economic and political

systems of all states are shaped by their constitutions.

THE MANY MEANINGS OF

THE RULE OF LAW

1 • HISTORICAL EMERGENCE

2• FORMAL THEORIES

3• DEMOCRATIC INSTITUTIONS

4• EAST ASIA

Historical Emergence:

From Rule by Man to the Rule of Law (Doctrine)

Based on Ancient Greek in the West, the best form of government is rule by man such as Plato's Philosopher King, or rule by law which was initially regarded as second best option.

However it is later been recognised as the most realistic option by Aristotle, who conducted an examination of numerous Greek constitution before coming to this conclusion.

The virtuous citizens in a virtuous society was seen as a mean by which to rule rather than to constraint on the king though in The Laws Plato, the law should be the master of the government to restrain potential depots.

Meanwhile, in political practice, law existed to order and regulate human affairs and to allow citizens to make choices for transgression.

In short, despite doctrinal assertions thatthe king was subject to the law4 and theargument that no Prince should rulewithout laws (Berman 1983: 292-4;Marsilius of Padua 1967), the translationof this idea into an institutionalarrangement whereby it might actually beenforceable took several centuries, duringwhich there were notable reverses ofcourse, and also powerful'voices opposedto limiting a sovereign, particularly amonarch, by law (Hobbes 1968: 232).

Constitutional Practice

1• Due to the prolonged political issue, common law legal systems of England

and America pride themselves on having devised the rule of law.

2• According to England way of rule, the monarch was an absolute prince.

3

• Following a political and legal struggle in the seventeenth century which included a civil war, the execution of one monarch and the overthrow and exile of another, the English at last settled on a constitutional order that, amongst other things, asserted rights over the king.

4

• If one had to hazard a generalisation about this process it would be that the political and legal culture that gives rise to, and sustains the rule of law involved the considerable cultural shift in Europe from feudalism to modernity, and that therefore cultures are not static; nor can they be simply manufactured or contrived at the demand of the government.

5

• Even the American case suggests that there is both a considerable background to a constitutional document and also that there is often a long period of evolution after the constitution is made before the full emergence of constitutional government takes hold in the society at large.

Formal Theories of

Rule of Law

The foundation of the famous formal theories of rule of

law owes a great deal to the famous English lawyer in

19th century, Albert Venn Dicey. The Dicey’s writings

about rule of law are both influential and enduring to the

legal committee especially judges as well as legal

practitioner.

In his view, he demands that the rule of law in England

involved a few institutional arrangements which stated :

No person is punishable except for a breach of law in the ordinary manner before the

ordinary

There is no man above law, that every person regardless of position or condition, is subject to

the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals, or equality before the law and this excludes exemptions of

officials or others from duty to obey the law which governs citizen.

The general principle of the constitution is based on the decision made by the court

especially in determining the rights of the individual specifically regarding the cases

brought to the court.

Dicey’s Critics

• The major problem of his formulation is that it is

narrowly English and failed to meet the abstract criteria

of variety legal system in England. He also assumed that

the law is relatively clear and fixed; whereas in fact this is

contradict with condition in England at that time. This has

been proven by the existence of a great congeries of

discretionary power in that country since sixteenth

century.

Dicey’s Critics• The writers also stressed out that the later version of the

doctrine are formal, partly political, more facultative and

not substantive aspect of law. The theories are not

intended to be instrumental or conducive toward the

accomplishment of particular substantive goods. The law

itself also required to have a various form of formal

criteria

• Another problem with this view is that the theories did not

provide a way to distinguish between regimes that are

democratic and those who abuse the human right.

• In the formal sense, this model is compatible with a large of

political regimes including the regimes with the unjust and

discriminatory rules and law, such as apartheid South Africa

and even Nazi Germany.

• Such rules and order was not compatible with one of the

universalistic criteria of the modern world, which is equality

• The rule of law later has been a give a new substantive

twist when the United Nation insist on the adoption of

certain substantive arrangement to all aspect include

political which said to be universal and apply to all states.

• The writers finally in this section suggest that there should

be a standard or unless the government will continued to

treat the citizen according to their whim and this standard

should not be confused with description with a description

of legal and political realities for international standard

which have often been abused.

From The Rule of Law to

Democratic Institutions• Every truly democratic government emphasis on the pluralistic

democratic politics rests upon the rule of law in order to keep a government within bounds.

• However, there are two qualifications must be made:• The democratic prevailing system can abuse the rights of

minorities by passing oppressive laws.

• Systems with non-discriminatory laws experience abuses of power by individuals.

• This is not compliance to the records of best human rights and military dictatorships which have been proven in the developed democratic rulings.

• This shows that modern systems are not solely based upon the law but as well as the political institutions and practices as the central principles in the system.

• Example: Written constitution as a conflict between rule of law and parliamentary sovereignty

Role as an Ideology• The concept of the rule of law was criticised as an ideological mask:

• The rule uses the rhetoric of equality before the law and impartiality to cover the underlying inequalities and exploitation.

• The ruling class had to accept the application of the rules, if not they will risk the wholesale loss of legitimacy within a system.

• Hence, the risk to political rulers in using the rhetoric of legal rule and equality will be deployed to press for real political accountability.

• This may be an attempt by the political leadership to bring their own subordinates into the line and eliminate the arbitrariness which functions with systems without rules.

• Nevertheless, these campaigns create demands to extend the rules even higher to encompass the behaviour of the ruling class.

• In contrary, it should not be thought that the legal orders have existed for very long time and was seen as an instrument of control for the population while the ruling elite remains largely exempted.

Underlying Assumptions

• The political leaders do make mistakes.

• Majority of the rule of law acknowledge the large

aggregation of power is perilous/dangerous.

• The rule of law is that the public officials are aware and

will accept the legal limits on their power.

• The legitimacy comes from obeying the rule of law.

East Asia: Rule by Law

• East Asian states such as China acknowledge the rule by a single man is considered as dangerous compared to rule by law.

• Hence, the government should rule according to the recognisedlaws rather than by mere personal rule.

• In spite of that, it is less interest in considering the senior political leaders accountable for what they do as sometimes they are effectively exempt from the law.

• Consequently, the problem on the relationship between one-party rule and the rule by law remains unsolved.

• This is because the party should adhere to the law on one hand but he is obliged to guide the state on the other hand.

• For instance, the Chinese senior leadership is effectively above the law.

Moreover, there are several underlying assumptions of this view:

• The society is not really plural but is rather a corporate whole where the emphasis is based on unity and not on diversity.

• The political leadership should prescribe a ruling ideology.

• The focus should be on collective responsibilities rather on the assertion of individual rights.

• The criticism of the political leadership is significant to criticism of the nation and its overriding interests and lastly the law and its institutions is an instrument to control the society and especially to remove the societal threats occurred in the nation.

East Asia: Practice• The significant differences between East and Southeast

Asia are in terms of the type of rulings, sophistication of

the legal order and levels of economic development

which do not always coincide.

• Therefore, the Philippines have a democratic political

system with a modern constitution (1986) but a backward

economy based on semi-feudal land holding practices.

• In fact, the rise of a law is based upon political system

which requires certain institutional supports such as The

Constitution by implementing and supporting the idea of

the rule of law.

• Some states in East Asia have made provision for other forms of legal accountability and these institutions will both extend the range of matters subject to external review and deepen the institutional grip of the law.

• However, it was not implemented by all states.

• Additionally, the economic experience of 1997-1998 may contribute to domestic tendencies and tends to induce greater institutional reform.

• The individual rights are not traditionally prized within systems and administrative review has been recognised as desirable and eventually emerges in a number of East Asian states.

• These developments indeed might lead to greater public accountability.

Opinion The rule of law is more of an ideal that we strive to achieve but sometimes fail to live up

to.

Many societies, including our own, have developed

institutions and procedures to try to make the rule of law a

reality.

These institutions and procedures have contributed to the definition of what makes up the rule of law and what is

necessary to achieve it.

Aristotle said more than two thousand years ago, "The rule of law is better than that of any

individual."

The notion of the “rule of law” stems from many traditions and

continents and is intertwined with the evolution of the history

of law itself.

Core principles of holding government authority to

account and placing the wishes of the populace before the

rulers, can be found amid the main moral and philosophical

traditions across the Asian continent.

Recent attempts to formalize its meaning

have drawn on this rich history of diverse

understandings.

The modern conception of the rule of law has developed as a concept distinct from the “rule of man”, involving a system of

governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler.

The concept of rule of law is deeply linked to the principle of

justice, involving an ideal of accountability and fairness in the protection and vindication

of rights and the prevention and punishment of wrongs.

Long before the United Nations, States were

working towards a rule of justice in international life with a view to establishing

an international community based on law.

• One’s should not be taken the formal theories that has been established by Dicey literally because it may not be compatible in a modern society.

• Moreover, the formal theories which is begins with Dicey view until the modern approach still shows a weakness.

• Thus, the rule of law should be review again so that it will be compatible with the legal system of the twentieth century.

• The review of the formal theories should not merely focus on the western countries but it should be compared with the law in other country such as Middle East countries which may have the different legal system from Western countries so that we have a wider view of the theories.

• From the context of rule of law to democratic institutions,

the democratic prevailing system can abuse the rights of

minorities by passing oppressive laws.

• Thus, we suggested that the scope for seeking relief for

oppression among minorities should be practiced in the

democratic system.

• The proposed changes can be made by having Tribunals to

give the order to seek relief for oppression in a clearer

picture.

• The order is regarding the types of relief that can be taken

by the minorities in the case of oppression and

mismanagement within the democratic institution.

• For example, one of the protection of the right of the

minorities is provided under Section 397 and 398

Companies Act 1956 in order for the prevention of

oppression and mismanagement of the affairs of the

companies.

• The rule of minority emphasis on each person impliedly

gives consent to the will of the majority.

• Companies Bill 2011 provides the scope for seeking relief

for oppression under Clause 241 and the types of relief

provided by Tribunals was stated under a newly added

provision which is the Clause 245.

• The systems with non-discriminatory laws was said to have

experience abuses of power by the authorities.

• Hence, a person who holds a public office is responsible in

performing their statutory duty without exceeding their

authority.

• Therefore, they should exercise their duty in accordance with

discretionary power with reference to the rules of reasons and

justice and not according to their personal whims.

• Thus, such exercise should be legal and regular but not vague,

arbitrary and fanciful.

• Moreover, we agreed on the underlying assumptions from the

rule of law to democratic institutions where the political

leaders do in fact make mistakes.

• Political leaders should be held accountable for what they do

as they are expected to rule within the interests of the public

good and not merely based on their personal interests.

• However, the leaders of absolute monarch consider their

existence as essential and would subsequently impose attack

on political order resulted in subversion.

• Hence, reformation of leadership should be practiced

comprehensively within well-controlled manner in order to

avoid any indication of imminent harm.

• This can ensure a lawful advocacy of political change and a

peaceful revolution.

• We agreed on the fact of dividing and balancing the various power of government by the executive has contributed to the smooth rulings of government and can avoid abuses of power by the authority.

• Hence, we opposed the assumption of China which claimed that separation of power shows the weakness of the government.

• Besides, we oppose the assumption where the rule of law is that the public officials are aware and will accept the legal limits on their power.

• The evidence shows the opposite side of it as the executive will manipulate the law in order to get round judicial rulings although under established legal orders.

• It has caused destructive effects on the public’s view towards the nation legal system.

• Moreover, we agreed on the assumption where legitimacy

comes from obeying the rule of law.

• The system has the attained power by free and fair

elections.

• Credible elections are held in order to provide citizens

with the opportunity to build a strong and peaceful

democratic system.

• There are best practices in the electoral management and

sufficient capacity for improved elections implementation

are built.

• Furthermore, the state also recognises an autonomous

civil society which consists of various voluntary

organisations which the state does not interfere on their

operations.

• The relationship between one-party rule and the rule by law in China both have their advantages and disadvantages.

• In our opinion, the government should rule according to the recognised laws rather than by mere personal rule.

• Leaders are expected to rule within the interests of the public good and not merely based on their personal opinion.

• This is because personal opinions are admissible if it is rationally based on an individual's perceptions and it would not constitute democracy.

• The rise of a law is based upon political system requires certain institutional supports which involves a reference in the constitution to the principle itself and the idea where the constitution is the highest form of law.

• This idea is further supported by the existence of an independent judiciary and by the laws regulating the political and electoral process.

• The character of the personnel influences in the use of

accountability mechanisms as new legal institutions are

not implemented by all East Asian states.

• For instance, citizens of a more advanced ruling along the

way to democratic accountability will be more likely to

resort to institutional uses of accountability mechanisms.

• Consequently, other distinctive Asian measures towards

economically developed societies without political and

social liberalisation should to be considered in a

comprehensive manner in order to be implemented in the

future.

Conclusion• It is correct to say that the Rule of Law is a "universal principle

of mankind“.

• It refers to the struggle for recognition of the inherent rights and

protection of liberties among the people throughout the centuries.

• Hence, the existence of the Rule of Law enables the people to

enjoy maximum liberty and judiciary since its development from

the rule by man to the democratic institutions.

• As a result, the Constitution has adopted this principle.

• It is often pointed out that the people in general still regard the

law as the order of the ruling authority.

• The Constitution was established in order to bind the

governmental power by the people because the Constitution itself

was given by a superior authority.