Rule of law

The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.

Generalities

In Commonwealth law, perhaps the most famous exposition of the concept of rule of law was laid down by Albert Venn Dicey in his Law of the Constitution in 1895:

When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. ...

... 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.

Thus, those who make and enforce the law are themselves bound to adhere to it.

In American law, the most famous exposition of the same principle was drafted by John Adams for the constitution of the Commonwealth of Massachusetts, 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 Constitution, 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 court in the United States.

The concept "rule of law" is generally associated with several other concepts, such as:

• Nullum crimen, nulla poena sine praevia lege poenali - No ex post facto laws
• Presumption of innocence - All individuals are "innocent until proven otherwise"
• Double jeopardy - Individuals may only be punished once for every specific crime committed. Retrials may or may not be permitted on the grounds of new evidence. See also res judicata.
• Legal equality - All individuals are given the same rights without distinction to their social stature, religion, political opinions, etc. That is, like Montesquieu would have it, "law should be like death, which spares no one."
• Habeas Corpus - A Latin term meaning "you must have the body". A person who is arrested has the right to be told what crimes he or she is accused of, and to request 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 rights can exist with or without a "rule of law", a situation which many argue is applicable to several modern dictatorships. However, the "rule of law" is considered a pre-requisite for democracy, and as such, has served as a common basis for human rights discourse between countries such as the People's Republic of China and the West.

The rule of law is an ancient ideal of first posited by Aristotle as a system of rules inherent in the natural order. 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 Legalism, but the totalitarian nature of the regime that this produced had a profound effect on Chinese 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-American legal tradition rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the government. In the People's Republic of China, the discourse around rule of law centers on the notion that it will ultimately enhance the power of the state and the nation.

Criticism

While there is a consensus both in China and the West that rule of law is a good thing, this is not a universially accepted truth. Some communist governments, including China during the Cultural Revolution, have been at least partially negative toward the idea of rule of law, arguing that it interferes with class struggle. Furthermore, rule of law is opposed in many authoritarian and totalitarian states. The explicit policy of those governments, as evidenced in the Night and Fog decrees of Nazi Germany, is that the public should be constantly in fear of the government.

There have been a number of criticisms of the concept of rule of law. One is that by focusing on the procedures used to create the law, one loses sight of the content and consequences of those laws. Another, which has been advised by critical theorists, is that the concept of rule of law is merely a method by which the ruling classes can justify their rule, because they are in charge of determining which laws get passed or not (in other words, they argue that the rule of law is in reality the rule of those people who have the power to make or change laws). Yet another criticism focuses on the emphasis that rule of law places on the prevention of arbitrary action, while giving legitimacy to all actions performed "according to the law", even when most people would oppose those actions.

As evidence to support these objections, the following example is often given: if an authoritarian government commences legal action against a political dissident, that action may not be arbitrary or made by personal whim, and it may be made exactly according to the law, but it may still be objectionable.

See also: law, Jurisprudencede:Rechtsstaat fr:État de droit nl:Rechtsstaat