Rule of Law

International Legal Research

Information about Rule of Law in free legal resources:

Treaties & Agreements

International Organizations

Jurisprudence $ Commentary

European Union

IP Law

Rule of Law

Rule of law Definition

Rule of law means that any act of the government must be done through laws, that no one is above the law. However this principle has many controversial aspects, the core of it requires that fair laws should apply to all persons in a given jurisdiction. It also means that those lawas are fairly and impartially applied by civil servats who apply them bound by the laws in an strict sense.

In the words of the Oxford English Dictionary, Rule of Law is “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.”

Background

The Rule of Law, a fundamental principle in many legal systems, is derived from the Magna Carta (with many mentions to the “law of the land”), a charter of political and civil rights signed in England in 1215.

No to be confused with “rules of law”, a set of the principles of the law.

Parts

The Rule of Law is a three-part substantive legal principle of justice. First, the Rule of Law means that individuals must recognize and accept that law is necessary to regulate society. Second, it means that the law applies equally to everyone, including people in power. And finally, the Rule of Law means that no one in our society has the authority to exercise unrestricted power to take away our rights except in accordance with the law.

This means that everyone has to obey the law; that no-one, no matter how important or powerful, is above the law. This means that the law applies not only to citizens but also to organisations and to people in government. Another aspect of the rule of law, as explained above, is that no-one is allowed to exercise powers except those powers given to them by law.

Rule of law and the United Nations

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. The Code of Hammourabi, promulgated by the King of Babylon around 1760 BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler. In the Arab world, a rich tradition of Islamic law embraced the notion of the supremacy of law. 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, including in Confucianism. In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. In continental Europe notions of rule of law focused on the nature of the State, particularly on the role of constitutionalism.

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.

Today, the concept of the rule of law is embedded in the Charter of the United Nations. In its Preamble, one of the aims of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. A primary purpose of the Organization is “to maintain international peace and security… and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” The Universal Declaration of Human Rights of 1948, the historic international recognition that all human beings have fundamental rights and freedoms, recognizes that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”

For the UN, the Secretary-General defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004))

The principle of the rule of law applies at the national and international levels. At the national level, the UN supports a rule of law framework that includes a Constitution or its equivalent, as the highest law of the land; a clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. These are the norms, policies, institutions and processes that form the core of a society in which individuals feel safe and secure, where legal protection is provided for rights and entitlements, and disputes are settled peacefully and effective redress is available for harm suffered, and where all who violate the law, including the State itself, are held to account.

At the international level, the principle of the rule of law embedded in the Charter of the United Nations encompasses elements relevant to the conduct of State to State relations. The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations recognizes the inherent link between the UN and the international rule of law. Its preamble emphasizes “the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations.” Drawn from existing commitments in international law, the core values and principles of the UN include respect for the Charter and international law; respect for the sovereign equality of States and the principle of non-use or threat of use of force; the fulfillment in good faith of international obligations; the need to resolve disputes by peaceful means; respect for and protection of human rights and fundamental freedoms; recognition that protection from genocide, crimes against humanity, ethnic cleansing and war crimes is not only a responsibility owed by a State to its population, but a responsibility of the international community, the equal rights and self-determination of peoples; and the recognition that peace and security, development, human rights, the rule of law and democracy are interlinked and mutually reinforcing. Appropriate rules of international law apply to the Organization as they do to States.

More Information

Certainty

Reasonable certainty as to the meaning and application of the law is an important aspect of the rule of law. In general, the rule of law encompasses the view that the law should be clear, easily accessible, comprehensive, prospective rather than retrospective, and relatively stable. [1]

Hon Murray Gleeson, then Chief Justice of the High Court of Australia, explained the importance of the ability of citizens to foresee how the law will affect them as follows: [2]

“In a liberal democracy, the idea of the rule of law is bound up with individual autonomy – the freedom to make choices. It is only if people know, in advance, the rules by which conduct is permitted or forbidden, and the rights and obligations that flow from their conduct, that they are free to set their personal goals and decide how to pursue them. That is the purpose of having law in the form of general rules, of reasonable clarity and certainty, capable of being known by people in advance of choosing to act in a certain way.” [3]

Importance

The Nobel laureate economist and political philosopher, Friedrich Hayek, similarly expressed the importance of certainty to the rule of law in this way:(3)40

“Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.”

Law vs. Rules of Law

Kelsen distinguishes between laws as normative statements, and rules of law, i.e. statements about normative statements. These categories are created so that you can tell the difference between the work of a judge and the work of a legal academic: one of them makes the law, the other merely suggests rules of law. A Criminal Law textbook does not have the same kind of meaning as the Crimes Act.

This seems like a reasonable distinction to make, so far. However, Kelsen then claims that all imputational statements of the form ‘If X is, then Y should be’ are in fact rules of law, not norms. This seems strange to me because the two statements “Thieves should be punished” and “If someone is a thief, then they should be punished” seem equivalent, but under Kelsen’s separation, one is a law, while the other is a rule of law. Why can’t the Crimes Act contain a law that says “If a person steals, then they should be imprisoned?” Aren’t statements like these just a particular kind of normative statement?

One solution would just be to reject Kelsen’s second claim, and just say that a statement “If X is, then Y ought to be” can be a norm or a rule of law, depending on the context in which it was created. But Kelsen was pretty smart, and we’ll need some strong arguments to justify disagreeing with him. (…)

Let’s say a Criminal Code has the law “You ought not to kill,” and then a legal scholar writes in their article “You ought not to kill.” Clearly, the legal scholar’s instruction does not have the normative force of the law. However, the scholar’s claim is not merely a description of the form ‘The law says “You ought not to kill.”‘ It is something in between, what Kelsen called ‘a descriptive ought,’ i.e. something that is both descriptive and normative.

H.L.A Hart creates the following analogy: There are a bunch of English prisoners in a French prisoner. The Warden shouts something in French, and a French-English translator calls out (in English), “Everybody should go to their cells!” The translator has no authority, and so they are not the one issuing the normative statement. But they are not directly repeating the Warden’s words either – their use of should is a descriptive ought.

Hart develops this analogy and give the translator more leeway. Say the Warden is afraid of fire, and constantly gives orders like “Pick up that straw!” “Pick up those sheets!” The translator, to save time, simply says “Pick up all flammable objects.” In this way, the translator is clarifying the law without adding new content. My own example would be if the Warden points in a direction and says “Put that away!” and the translator looks over there and translates “Put that broom away.” This is not what the Warden literally said, but it makes things clearer.

So how does this analogy apply? For a start, we can say that every legal norm has a corresponding rule of law describing that norm. This is the example from before, the difference between a statute and a textbook saying “Do not kill.” But a law says what is says; if you rephrase “You ought not to kill” as “Killing brings a sanction” then the rephrasing is your interpretation. It is no longer a law, and is instead a rule of law. A legal scientist creates such rules of law so that the law may be better understood. For example, say we have a law that says “You ought not to kill (max penalty 25 years jail).” A legal scientist wants to express this law in Kelsen’s format, where delicts are the conditions for sanctions, and so they rephrase the law as “A person who kills receives a sanction of up to 25 years imprisonment.” As with the Warden/Translator, this is not what the law literally said, but it makes things clearer from the perspective of legal science.

We hear about how all dependent norms can be phrased as conditions in a rule of law, i.e. “If a person is found to commit a delict by an organ authorised to do so, and the relevant laws are in accordance with the Constitution, etc. etc. then there should be a sanction.” This is a rule of law, because no legal norm actually says this – it must be inferred through a bunch of separate laws (e.g. the Constitution and the Criminal Code). That is the reason why imputational statements are not legal norms.

If a legal scientist were granted the legal power to make all the rules, she could choose to write the laws in cumbersome, imputational form, and then they would be legal norms. The only reason why imputational statements are considered rules of law is because they are posited by legal scientists rather than legal organs.

This all supports the argument that the “Rules of Law” set is closely linked to the “Descriptive Statements” set, rather than the “Rules of Science” set. [4]

Judgment and the Rule of Law

Contents of Judgment and the Rule of Law

Contents of this subject matter include:

  • Why follow precedent?
  • Case studies of precedent and change: rape in marriage and native title
  • The contemporary relevance of the past in law and history
  • Case studies: judging the ‘Stolen Generations’.
  • Judging relationally
  • Case studies of judging relationally: Should animals or the environment have standing in court? How can Indigenous and non-Indigenous laws meet respectfully?
  • What is the role, meaning and purpose of the rule of law?
  • A critical consideration of the rule of law through contemporary national and/or international case studies
  • How does a shift from liberal to neo-liberal values influence understanding of and critical engagement with the normative values which underpin legal reasoning?
  • Case study: the influence of neo liberal values on the language and meaning of tort law
  • Discussion of judgment and the rule of law with reference to any of the topics/readings discussed in previous weeks. Readers’ presentations of their judgment analysis

Literature Review on Rule of Law

In the Encyclopedia of Public Administration and Public Policy, [1] Julia Beckett offers the following summary about the topic of Rule of Law: The rule of law is an important concept about government and governing. The “rule of law” is often defined as a government of laws and not men. The origin and development of this idea is summarized and connected to American government. Political and legal philosophy articulate rule of law as an important government foundation, and there are a number of interpretations of what this phrase means. Commonly accepted principles of government under the rule of law are presented here. Finally, this entry discusses some challenges and extensions of the rule of law ideal.

Rule of Law and Democracy Promotion

In relation to the international law practice and rule of law and democracy promotion in this world legal Encyclopedia, please see the following section:

Human Rights

About this subject:

Civil Society

Note: there is detailed information and resources under these topics during the year 2013, covered by this entry on rule of law and democracy promotion in this law Encyclopedia.

Introduction

Rule of Law

This entry provides an overview of the legal framework of rule of law, with a description of the most significant features of rule of law at international level.

Related Work and Conclusions

Resources

See Also

  • Legal theory
  • Jurisprudence
  • Theory of Law
  • Philosophy of Law

Resources

See Also

References (Papers)

  • Kenya And The Rule Of Law: The Perspective Of Two Volunteers, Kim Matthews, William H. Coogan, Oct 2017
  • Remembering An Abolitionist, Ambassador John R. Miller (May 23, 1938-October 4, 2017), Eleanor Kennelly Gaetan, Donna M. Hughes, Oct 2017
  • Volume 12, Issue 1 (Summer 2017), Aug 2017
  • The Origins And Boundaries Of Executive Privilege, John M. Greabe, Jul 2017
  • International Tax Planning As A Business Driver, Robert A. Agresta, Jun 2017
  • Water As A Human Right: A Case Study Of The Pakistan-India Water Conflict, Waseem Ahmad Qureshi, Jun 2017

Resources

Notes and References

  1. Entry about Rule of Law in the Encyclopedia of Public Administration and Public Policy (2015, Routledge, Oxford, United Kingdom)

See Also

Further Reading

  • Global Encyclopedia of Public Administration, Public Policy, and Governance (2018, Springer International Publishing, Germany)

Resources

Notes

  1. Joseph Raz “The Rule of Law and its Virtue”(1977) 93 Law Quarterly Review 195 at 198-202
  2. Hon Murray Gleeson “A Core Value”(paper presented to the Annual Colloquium of the Judicial Conference of Australia, Canberra, October 2006).
  3. Friedrich August von Hayek The Road to Serfdom (1944)
  4. By Hugh McCarthy

See Also

  • Legal Positivism
  • Natural Law Theory
  • Interpretivist Theories of Law
  • Law of the Land (lex terrae)
    Parol Evidence Rule
    Morality of Law
    Duress
    Unconscionability

  • Legal Realism
  • Nature of Law

Further Reading

  • C. Fred Alford (2010). Narrative, Nature, and the Natural Law: From Aquinas to International Human Rights. Palgrave Macmillan.
  • Finnis, J. (2011, first published 1980). Natural law and natural rights. Oxford: Oxford University Press
  • Tamanaha, Brian Z. (2004). On the Rule of Law. Cambridge University Press. p. 9.
    Craig, Paul P. (1997). “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework”. Public Law: 467.
    Wormuth, Francis. The Origins of Modern Constitutionalism, page 28 (1949).
    Bingham, Thomas. The Rule of Law (Penguin 2010).
    David Clarke, “The many meanings of the rule of law”in Kanishka Jayasuriya, ed., Law, Capitalism and Power in Asia (New York: Routledge, 1998).

Mentioned in these Entries

1000 Top law pages in Wikipedia in may 2012, 1500 Top law pages in Wikipedia in may 2012, 250 Top law pages in Wikipedia in may 2012, 500 Top law pages in Wikipedia in may 2012, Administrative Law Questions, Briefs in Law, Chile Price Band System and Safeguard Measures Relating to Certain Agricultural Products, Citation of legal blogs in law reviews, Classic books with the word Law in the title, Constitutional Text: Bangladesh 1972, Amended 2004, De Sanchez v. Banco Central de Nicaragua, Definitively less popular law terms at Schools, Development International Law – Part 2, Development International Law – Part 5, Development International Law – Part 6, Development International Law – Part 8, Development International Law – Part 9, Development International Law -2, Development International Law -7, Efficacy of international law. Bibliograpy, European Convention on Nationality 2, European Thesaurus on International Relations and Area Studies, European Union law Part 23, European Union law Part 3, European Union law Part 31 2, European Union law Part 4, European Union law Part 5, European Union law Part 8, European Union law2, European Union law4, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, General Division Classification (Max Planck Institute), Geneva Conventions Part 3, Geneva Conventions, Human Rights resources, Human persons are not law's creatures but its proper point, Human rights and international law. Bibliography, International Court of Justice Part 21, International Court of Justice Part 4, International Court of Justice0, International Court of Justice6, International Court of Justice8, International Court of Justice9, International Criminal Court Part 23, International Criminal Court Part 24, International Criminal Court Part 27, International Criminal Court Part 28, International Criminal Court, International Criminal Court3, International Criminal Court4, International Criminal Court9, International Criminal Law. Bibliography, International Criminal Tribunal for the Former Yugoslavia Part 4, International Humanitarian Law Part 21, International Humanitarian Law Part 3, International Humanitarian Law8, International Law Encyclopedia 8, International Lawyers Associations 2, International Lawyers Associations 3, International Security Part 21, International Security Part 7, International Security, International Security0, International criminal law tags, International human rights law Part 4, International human rights law Part 44, International human rights law Part 45, International human rights law1, International human rights law3, International human rights law6, International human rights law9, International humanitarian law Part 20, International humanitarian law Part 3, International humanitarian law6, International institutions Part 7, International institutions, International institutions0, International judicial institutions, International law databases resources, International law index R, International law index, International law tags, International legal sources of information, International trade law Part 24, International trade law Part 9, International trade law0, International trade law8, Investment treaty law and arbitration articles, JOSEFINA NAJARRO de SANCHEZ v. BANCO CENTRAL de NICARAGUA, Jurisprudence constante, KIA-KIK North America LC Classification, Law Classical books, Law Journals ranking worldwide, Law and Ideology, Law global results of the 200 top searches in Google 3, Law global results of the 200 top searches in Google 4, Law global results of the 200 top searches in Google 7, Law global results of the 200 top searches in Google, Law quotes 4, Laws of war, Legal education, Legal Education future, List of European and UK Online Journals, List of Specialty legal blogs 3, MPEPIL: Public Law: R, MPEPIL: Sources, foundations and principles of international law, Minnesota Lawyer’s Responsabilities, Moralization of international politic and law, Outline of Choice of forum and law, Outline of Trust and Estates, Popular international books, REYNO v. PIPER AIRCRAFT COMPANY, Ranking of the top 100 legal most-cited articles of all time, Refugees, Refugees2, Subjects of International Law. Bibliography, Substance versus Procedure, TOP US Online Law Journals ranking, The Year Books, Top Specialized US Law Journals, Top law pages in Wikipedia in may 2012 by importance, Trade law Part 30, Trade law Part 34, Trade law Part 48, Trade law Part 52, Trade law Part 56, Trade law Part 64, Trade law Part 67, Truth Commissions and Procedural Fairness, UN Convention against Corruption, Unidroit Convention on Agency in the International Sale of Goods, United Nations Convention Against Corruption, United Nations tags, United States Constitution Bibliography.

Introduction to Rule of Law

Rule of Law, principle that law (as administered by the ordinary courts) is supreme and that all citizens (including members of the government) are equally subject to it and equally entitled to its protection.” (1)

Resources

Notes and References

Guide to Rule of Law

The Legal History of Rule of Law

This section provides an overview of Rule of Law

Resources

See Also

  • Legal Biography
  • Legal Traditions
  • Historical Laws
  • History of Law

Further Reading

Rule of Law in Constitutional Law

From the Comparative Constitutions Project: See Rechtsstaat

Hierarchical Display of Rule of law

Politics > Political framework > State
Law > Sources and branches of the law > Source of law > Legislation > Legal rule > Application of the law > Primacy of the law

Rule of law

Concept of Rule of law

See the dictionary definition of Rule of law.

Characteristics of Rule of law

Resources

Translation of Rule of law

Thesaurus of Rule of law

Politics > Political framework > State > Rule of law
Law > Sources and branches of the law > Source of law > Legislation > Legal rule > Application of the law > Primacy of the law > Rule of law

See also

Leave a Comment