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Rule of law

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	Topics Rule of law Topic Home The Rule of Law, in its most basic form, is the principle that no one is above the law. Thomas PaineFacts About Thomas Paine Thomas Paine was an English and American intellectual, scholar, revolutionary, deist and idealist, who spent much of his ti... stated in his pamphlet Common SenseCommon Sense (pamphlet) ... (1776): "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 EnglandEngland England is the largest and most populous constituent country of the United Kingdom.... , the issuing of the Magna CartaMagna Carta Magna Carta , also called Magna Carta Libertatum , is an English charter originally issued in 1215.... was a prime example of the "rule of law." The Great Charter forced King JohnJohn of England John reigned as King of England from April 6, 1199, until his death.... to submit to the law and succeeded in putting limits on feudalFeudalism Feudalism refers to a general set of reciprocal legal and military obligations among the warrior nobility of Europe during t... fees and duties. Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed lawLaw Law is the set of rules or norms of conduct which forbid, permit or mandate specified actions and relationships among people... s adopted and enforced in accordance with established procedural steps that are referred to as due processDue process In United States law, due process is the principle that the government must respect all of a person's legal rights instead ... . The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorshipDictatorship A dictatorship is a autocratic form of government in which the government is ruled by a dictator.... and to anarchyAnarchy Anarchy is the anarchist society, the stateless society of free people.... . Samuel RutherfordSamuel Rutherford Samuel Rutherford was a theologian and controversialist, born at Nisbet, Roxburghshire, educated at Edinburgh University, wh... was one of the first modern authors to give the principle theoretical foundations, in Lex, RexLex, Rex Summary *Lex, Rex* is a book by Samuel Rutherford published in 1644 on limited government and constitutionalism.... (1644), and later Montesquieu in The Spirit of the LawsThe Spirit of the Laws *The Spirit of the Laws* is a book on political theory by Charles de Secondat, Baron de Montesquieu, published in 1748.... (1748). In continental EuropeFacts About Continental Europe Continental Europe, also referred to as mainland Europe or simply the Continent, is the continent of Europe, exp... and legal thinking, the rule of law has frequently, but not always, been associated with a RechtsstaatFacts About Rechtsstaat *Rechtsstaat* is a term borrowed from German jurisprudence which literally means a "law-based state" or "constitutional st... . According to modern AngloEngland England is the largest and most populous constituent country of the United Kingdom.... -AmericanUnited States The United States of America, also known as the United States, the U.S., the U.S.A., and America, is... thinking, hallmarks of adherence to the rule of law commonly include a clear separation of powersSeparation of powers The separation of powers is a model for the governance of the state.... , legal certainty, the principle of legitimate expectation and equality of all before the law. The concept is not without controversy, and it has been said that "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use". Overview The contrast between the rule of men and the rule of law is first found in PlatoPlato Plato , whose real name is believed to have been Aristocles, was an immensely influential ancient Greek philosopher, ... 's Statesman and Laws and subsequently in AristotleAristotle Aristotle was an ancient Greek philosopher, a student of Plato and teacher of Alexander the Great.... 's Politics, where the rule of law implies both obedience to positive law and formal checks and balances on rulers and magistrates. In his treatise, Law of the Constitution (10th Ed., 1959), pp. 187, et seq., Dicey identified three principles which together establish the rule of law: (1) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts." — Halsbury's Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6, footnote 1 ... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. — Law of the Constitution (London: MacMillan, 9th ed., 1950), 194. Another definition can be found at Halsbury's Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6 The legal basis of government gives rise to the principle of legality, sometimes referred to as the rule of law. This may be expressed as a number of propositions, as described below. (1) The existence or non-existence of a power or duty is a matter of law and not of fact, and so must be determined by reference either to the nature of the legal personality of the body in question and the capacities that go with it, or to some enactment or reported case. As far as the capacities that go with legal personality are concerned, many public bodies are incorporated by statute and so statutory provisions will define and limit their legal capacities. Individuals who are public office-holders have the capacities that go with the legal personality that they have as natural persons. The Crown is a corporation sole or aggregate and so has general legal capacity, including (subject to some statutory limitations and limitations imposed by European law) the capacity to enter into contracts and to own and dispose of property. The fact of a continued undisputed exercise of a power by a public body is immaterial, unless it points to a customary power exercised from time immemorial. In particular, the existence of a power cannot be proved by the practice of a private office. (2) The argument of state necessity is not sufficient to establish the existence of a power or duty which would entitle a public body to act in a way that interferes with the rights or liberties of individuals. However, the common law does recognise that in case of extreme urgency, when the ordinary machinery of the state cannot function, there is a justification for the doing of acts needed to restore the regular functioning of the machinery of government. (3) If effect is to be given to the doctrine that the existence or non-existence of a power or duty is a matter of law, it should be possible for the courts to determine whether or not a particular power or duty exists, to define its ambit and provide an effective remedy for unlawful action. The independence of the judiciary is essential to the principle of legality. The right of access to the courts can be excluded by statute, but this is not often done in express terms. A person whose civil or political rights and freedoms as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) have been infringed is entitled under the Convention to an effective right of access to the courts and an effective national remedy. On the other hand, powers are often given to bodies other than the ordinary courts, to decide questions of law without appeal to the ordinary courts, and sometimes in such terms that their freedom from appellate jurisdiction extends to their findings of fact or law on which the existence of their powers depends. (4) Since the principal elements of the structure of the machinery of government, and the powers and duties which belong to its several parts, are defined by law, its form and course can be altered only by a change of law. Conversely, since the legislative power of Parliament is unrestricted, save where European Community law has primacy, its form and course can at any time be altered by Parliament. Consequently there are no powers or duties inseparably annexed to the executive government. In American lawLaw of the United States The law of the United States was originally largely derived from the common law of the system of English law, which was in f... , the most famous exposition of the same principle was drafted by John AdamsJohn Adams John Adams was a Founding Father of the United States and American politician who served as the first Vice President of the... for the constitution of the Commonwealth of MassachusettsMassachusetts The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States.... , in justification of the principle of separation of powers: In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. — Massachusetts ConstitutionMassachusetts Constitution The Constitution of the Commonwealth of Massachusetts is the fundamental governing document of the Commonwealth of Massachus... , Part The First, art. XXX (1780). The last phrase, "to the end it may be a government of laws and not of men," has been quoted with approval by the U.S. Supreme Court and every state supreme courtState supreme court In the United States, the state supreme court is the highest state court in the state court system.... in the United StatesUnited States The United States of America, also known as the United States, the U.S., the U.S.A., and America, is... . A similar concept is found in Common SenseCommon Sense (pamphlet) ... by Thomas PaineThomas Paine Thomas Paine was an English and American intellectual, scholar, revolutionary, deist and idealist, who spent much of his ti... : . . . the world may know, that so far as we approve of monarchyMonarchy A monarchy, from the Greek ????, "one," and a??e??, "to rule", is a form of government that has a Monarch as Head of... , 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. The concept "rule of law" is generally associated with several other concepts, such as: Nullum crimen, nulla poena sine praevia lege poenaliNullum crimen, nulla poena sine praevia lege poenali Overview *Nullum crimen, nulla poena sine praevia lege poenali* is a basic maxim in continental European legal thinking, authored ... — No ex post facto lawEx post facto law An ex post facto law or retroactive law, is a law that retroactively changes the legal consequences of acts committed ... s Presumption of innocencePresumption of innocence Presumption of innocence is a legal right that the accused enjoys in criminal trials in many modern nations.... — All individuals are "presumed innocent until proven otherwise" Legal equalityLegal egalitarianism Legal egalitarianism maintains that all citizens are equal before the law.... — All individuals are given the same rights without distinction to their social stature, religion, political opinions, etc. That is, as MontesquieuCharles de Secondat, baron de Montesquieu Charles-Louis de Secondat, Baron de La Brde et de Montesquieu , more commonly known as Montesquieu, was a French polit... would have it, "law should be like death, which spares no one." Habeas corpusHabeas corpus Latin for "you [should] have the body", in common law countries, *habeas corpus* is the name of a legal instrument or writ... — in full habeas corpus ad subjiciendum, a LatinLatin Latin is an ancient Indo-European language originally spoken in Latium, the region immediately surrounding Rome.... term meaning "you must have the body to be subjected (to examination)". A person who is arrested has the right to be told what crimes he or she is accused of, and to request that his or her custody be reviewed by judicial authority. Persons unlawfully imprisoned have to be freed. The concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation or one without respect for human rightsHuman rights Human rights refers to the concept of human beings as having universal rights, or status, regardless of legal jurisdiction o... can exist with or without a "rule of law", a situation which many argue is applicable to several modern dictatorshipDictatorship A dictatorship is a autocratic form of government in which the government is ruled by a dictator.... s. However, the "rule of law" or RechtsstaatRechtsstaat *Rechtsstaat* is a term borrowed from German jurisprudence which literally means a "law-based state" or "constitutional st... is considered a prerequisite for democracyDemocracy Democracy is a form of government for a nation state, or for an organization in which the citizens have a vote or voice in ... , and as such, has served as a common basis for human rights discourse between countries such as the People's Republic of ChinaPeople's Republic of China The People's Republic of China , is a country in East Asia.... and the West. The rule of law is an ancient ideal first posited by Plato as grounded in divine reason and so inherent in the natural orderNatural order The natural order is the moral source from which natural law seeks to derive its authority.... . It continues to be important as a normative ideal, even as legal scholars struggle to define it. The concept of impartial rule of law is found in the Chinese political philosophy of legalismLegalism (Chinese philosophy) In Chinese history, Legalism was one of the four main philosophic schools in the Spring and Autumn Period and the Warring St... , but the totalitarian nature of the regime that this produced had a profound effect on ChineseChina China is a cultural region and ancient civilization in East Asia.... political thought which at least rhetorically emphasized personal moral relations over impersonal legal ones. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft. In the Anglo-AmericanAnglo-American *Anglo-American* may refer to:* English American, a person who was born in England then emigrated to North America... legal tradition rule of law has been seen as a guard against despotismDespotism Despotism is a form of government by a single authority, either an individual or tightly knit group, which rules with absolu... and as enforcing limitations on the power of the government. In China, the discourse around rule of law centers on the notion that laws ultimately enhance the power of the state and the nation, which is why the Chinese governmentChinese government The phrase "Chinese government" may refer to:... adopts the principle of rule by law rather than rule of law. More recently, the rule of law has been considered as one of the key dimensions that determines the quality and good governanceGood governance The terms governance and good governance are being increasingly used in development literature.... of a country. Research, like the Worldwide Governance IndicatorsWorldwide Governance Indicators Based on a long-standing research program of the World Bank, the Kaufmann-Kraay-Mastruzzi ' capture six key dimensions ... , defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries. Declaration of Delhi In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New DelhiNew Delhi New Delhi , an urban area within the metropolis of Delhi, is the capital of the Republic of India and the seat of the Gover... and speaking as the International Commission of JuristsInternational Commission of Jurists The International Commission of Jurists is an international human rights non-governmental organisation.... , made a declaration as to the fundamental principle of the rule of law. Lord Bingham's sub-rules In his speech on November 16, 2006, for the Sir David Williams Lecture in the Law Faculty of Cambridge University , Lord Bingham of Cornhill postulated eight sub-rules of the rule of law. It should be noted that Bingham takes a strongly substantive view on the rule of law, and that these sub-rules would be subject to fierce criticism by journalists. the law must be accessible and so far as possible intelligible, clear and predictable questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation the law must afford adequate protection of fundamental human rights means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers adjudicative procedures provided by the state should be fair the state must comply with its obligations in international law, the law which, whether deriving from treaty or international custom and practice, governs the conduct of nations. Authoritarianism Rule of law is frequently opposed by authoritarian and totalitarian states. The explicit policy of such governments, as evidenced in the Night and Fog decrees of Nazi GermanyNazi Germany Nazi Germany, or the Third Reich, refers to Germany in the years 1933 to 1945, when it was governed by the National So... , is that the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations. Dictatorships generally establish secret policeSecret police Secret police are a police organization which operates in secrecy for the national purpose of maintaining national security ... forces, which are not accountable to established laws, which can suppress threats to state authority. Critique Marxist theory asserts the capitalistCapitalism Capitalism is an economic system in which the means of production are owned mostly privately, and capital is invested in t... stateState A state is a set of institutions that possess the authority to make the rules that govern the people in one or more societie... is an instrument of oppression of the proletariatProletariat The proletariat is a term used to identify a lower social class; a member of such a class is proletarian.... at the hands of the bourgeoisieBourgeoisie Bourgeoisie in modern use refers to the ruling class in a capitalist society. ... , which set the laws to suit itself. Following this, some critical theoristCritical theory In the humanities and social sciences, critical theory has two quite different meanings with different origins and histories... s analyze the "rule of law" as a judicial fiction which aims at disguising the reality of violence and, in Marxist terminology, "class struggleClass struggle Class struggle is class conflict looked at from any kind of socialist perspective.... ". This theory presumes that the "bourgeoisie" holds the power to set the laws. The ItalianItaly Italy, officially the Italian Republic , is a Southern European country.... philosopher Giorgio AgambenGiorgio Agamben Giorgio Agamben is an Italian philosopher who teaches at the Universit IUAV di Venezia.... argues that the state of exceptionState of exception State of Exception may mean:* State of Exception , a book written by Giorgio Agamben... is at the core of the concept of sovereigntySovereignty Sovereignty is the exclusive right to exercise supreme political authority over a geographic region, group of people, or on... , and not the "rule of law" as liberalLiberalism Liberalism is an ideology, philosophical view, and political tradition which holds that liberty is the primary political val... thinkers have it. While the sovereign claims to follow the "rule of law", any protection the people have, however fundamental, can be jettisoned once the government finds it convenient to do so. Those that take formal conceptions of the rule of law have criticised more substansive conceptions which question whether a law is "good or bad". See also Amnesty lawAmnesty law Summary An amnesty law is any law that retroactively exempts a select group of people, usually military leaders and government leade... Command responsibilityCommand responsibility Command responsibility, sometimes referred to as the Yamashita standard, or the Medina standard is the doctrine... Good GovernanceGood governance The terms governance and good governance are being increasingly used in development literature.... Human rightsHuman rights Human rights refers to the concept of human beings as having universal rights, or status, regardless of legal jurisdiction o... LawLaw Law is the set of rules or norms of conduct which forbid, permit or mandate specified actions and relationships among people... Legal formalismLegal formalism Legal formalism is a Positivist view in jurisprudence and the philosophy of law.... LiberalismLiberalism Liberalism is an ideology, philosophical view, and political tradition which holds that liberty is the primary political val... Judicial activismJudicial activism Judicial activism describes an act of judicial interpretation that critics consider to take on suspected political reasoning... Juridical security JurisprudenceJurisprudence Jurisprudence is the theory and philosophy of law.... Mob ruleOchlocracy Ochlocracy is government by mob or a mass of people, or the intimidation of constitutional authorities.... Legal security MundializationMundialization The word "mundialisation" is the English version of the French "mondialisation" which today is referred to in French as what is re... Property rights RechtsstaatRechtsstaat *Rechtsstaat* is a term borrowed from German jurisprudence which literally means a "law-based state" or "constitutional st... Rights of the accusedRights of the accused The rights of the accused is a class of rights that apply to a person in the time period between when they are formally accu... Secret policeSecret police Secret police are a police organization which operates in secrecy for the national purpose of maintaining national security ... State of emergencyState of emergency A state of emergency is a governmental declaration that may suspend certain normal functions of government, may work to aler... Unitary executive theoryUnitary executive theory Overview In American political and legal discourse, the unitary executive theory is a controversial theory of Constitutional interpre... War on Terror Worldwide Governance IndicatorsWorldwide Governance Indicators Based on a long-standing research program of the World Bank, the Kaufmann-Kraay-Mastruzzi ' capture six key dimensions ... Further reading Craig, Paul. "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework" Public Law pp. 467-487 (1997) External links International Network for the Promotion of Rule of Law, an association of rule of law professionals designed to foster discussion and cooperation on issues related to the establishment of the rule of law. University of Iowa Center for International Finance and Development An audio or written analysis of the Rule of Law by Lord Bingham of Cornhill (the senior Lord of Appeal in OrdinaryLord of Appeal in Ordinary Lords of Appeal in Ordinary are Life peers entrusted since the Appellate Jurisdiction Act 1876 with carrying out the judicia... and so effectively the chief justice of the UK supreme court) is available at the (Faculty, of Law, University of Cambridge). Canada-based Rule of Law Think Tank providing legal resources helpful in aid for the better advancement of the Rule of Law. Worldwide ratings of country performances on Rule of Law and other governance dimensions from 1996 to present. How rule of law is to be understood in the UK system from The Economist print edition, March 13, 2008.