Rule of Law

Tuesday, January 9, 2018

The rule of law is the legal principle that law should govern a nation, as opposed to being governed by decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour 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 the divine right of kings.John Locke defined freedom under the rule of law as follows:

Freedom is constrained by laws in both the state of nature and political society. Freedom of nature is to be under no other restraint but the law of nature. Freedom of people under government is to be under no restraint apart from standing rules to live by that are common to everyone in the society and made by the lawmaking power established in it. Persons have a right or liberty to (1) follow their own will in all things that the law has not prohibited and (2) not be subject to the inconstant, uncertain, unknown, and arbitrary wills of others.

The rule of law was further popularized in the 19th century by British jurist A. V. Dicey. The concept, if not the phrase, was familiar to ancient philosophers such as Aristotle, who wrote “Law should govern”.

Rule of law implies that every citizen is subject to the law, including lawmakers themselves. In this sense, it stands in contrast to an autocracy, 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 democracy.

The Oxford English Dictionary has defined “rule of law” this way:

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 by divine 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.

Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared (prohibitions or exigencies), with prospective application (punishments or consequences tied to a given prohibition or exigency), 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.

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.

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.

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.”




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