Rule of Law
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What Is Law?

The term ‘law’ has been used in a wide variety of ways. In the first place, there are scientific laws or what is called descriptive laws. These describe regular or necessary patterns of behavior found in either natural or social life.

The most obvious examples are found in the natural sciences; for instance, in the laws of motion and thermodynamics advanced by physicists.

But this notion of law has also been employed by social theorists, in an
attempt to highlight predictable, even inevitable, patterns of social behavior.

This can be seen in Engels’s assertion that Karl Marx uncovered the ‘laws’ of historical and social development, and in the so-called ‘laws’ of demand and supply which underlie economic theory.

An alternative use, however, treats law generally as a means of enforcing norms or standards of social behavior. Sociologists have thus seen forms of law at work in all organized societies, ranging from informal processes usually found in traditional societies to the formal legal systems typical of modern societies

By contrast, political theorists have tended to understand the law more specifically, seeing it as a distinctive social institution clearly separate from other social rules or norms and only found in modern societies.

In a general sense, the law constitutes a set of rules, including, as said earlier, commands, prohibitions, and entitlements. However, what is it that distinguishes law from other social rules? First, the law is made by the government and so applies throughout society. In that way, the law reflects the ‘will of the state’ and therefore takes precedence over all other norms and social rules.

For instance, conformity to the rules of a sports club, church, or trade union does not provide citizens with immunity if they have broken the ‘law of the land’.

Second, the law is compulsory; citizens are not allowed to choose which laws to obey and which to ignore, because the law is backed up by a system of coercion and punishment.

Third, the law has a ‘public’ quality in that it consists of published and recognized rules. This is, in part, achieved by enacting law through a formal, and usually public,
legislative process. Moreover, the punishments handed down for law-breaking are predictable and can be anticipated, whereas arbitrary arrest or imprisonment has a random and dictatorial character.

Fourth, the law is usually recognized as binding upon those to whom it applies, even if particular laws may be regarded as ‘unjust’ or ‘unfair’. Law is therefore more than simply a set of enforced commands; it also embodies moral claims, implying that legal rules should be obeyed.

THE RULE OF LAW

The rule of law is a constitutional principle respected with almost devotional intensity in liberal-democratic states. At heart, it is quite simply the principle that the law should ‘rule’, that it should provide a framework within which all citizens act and beyond which no one, neither private citizen nor government official should go.

The principle of the rule of law developed out of a long-established liberal theory of law. From John Locke onwards, liberals have regarded law not as a constraint upon the individual but as an essential guarantee of this liberty. Without the protection of the law, each person is constantly under threat from every other member of society, as indeed they are from him.

The danger of unrestrained individual conduct was graphically represented by the barbarism of the ‘state of nature’. The fundamental purpose of the law is therefore to protect individual rights, which in Locke’s view meant the right to life, liberty, and property.

The supreme virtue of the rule of law is therefore that it serves to protect the individual citizen from the state; it ensures a ‘government of laws and not of men’. Such an idea was enshrined in the German concept of the Rechtsstaat, a state based on law, which came to be widely adopted throughout continental Europe and encouraged the development of codified and professional legal systems.

The rule of law, however, has a distinctively Anglo-American character. In the USA, the supremacy of law is emphasized by the status of the US Constitution, by the checks and balances it establishes and the individual rights outlined in the Bill of Rights. This is made clear in the Fifth and Fourteenth Amendments to the Constitution, which specifically forbid federal or state government from denying any person life, liberty, and property without ‘due process of law’.

The doctrine of ‘due process’ not only restricts the discretionary power of public officials but also enshrines several individual rights, notably the right to a fair trial and equal treatment under the law. Nevertheless, it also vests considerable power in the hands of judges who, by interpreting the law, effectively determine the proper realm of government action.

By contrast, the UK conception of the rule of law has seen it as typical of uncodified constitutional systems, within which rights and duties are rooted in common law, laws derived from long-established customs and traditions.

The classic account of such a view is found in A.V. Dicey’s Introduction to the Study of the Law of the Constitution ([1885] 1939). In Dicey’s view, the rule of law embraces four separate features. First, no one should be punished except for breaches of the law.

This is the most fundamental feature of the rule of law because it distinguishes between rule-bound government and arbitrary government, suggesting that where the rule of law exists government cannot simply act as it pleases; for instance, it cannot punish citizens merely because it objects to their opinions or disapproves of their behavior.

Second, the rule of law requires what Dicey called ‘equal subjection’ to the law, more commonly understood as equality before the law. Quite simply, the law should be no respecter of persons, it should not discriminate against people on grounds of race, gender, religious creed, social background, and so forth, and it should apply equally to ordinary citizens and government officials.

Third, when the law is broken there must be a certainty of punishment. The law can only ‘rule’ if it is applied at all times and in all circumstances; the law rules only selectively when some law-breakers are prosecuted and punished, while others are not. Finally, the rule of law requires that the rights and liberties of the individual are embodied in the ‘ordinary law’ of the land.

This would ensure, Dicey hoped, that when individual rights are violated citizens can seek redress through the courts.

Although Dicey believed that the rule of law was typical of the UK system of government and those modeled upon it, in several respects the UK offers a particularly poor example of the rule of law. For instance, though Dicey strove to reconcile the two, it can be argued that parliamentary sovereignty, the central principle of Britain’s uncodified constitution, violates the very idea of a rule of law. It is difficult to suggest that the law ‘rules’ if the legislature itself is not bound by any external constraints.

This problem has been exacerbated by the growth of executive power and the effective control which the government of the day exercises over Parliament, made possible by party discipline.

This encouraged Lord Hailsham (1976) to describe the UK system of government as an ‘elective dictatorship’. Moreover, despite the introduction of the Human Rights Act 1998, Parliament, rather than the courts, still have the primary role in determining the extent of civil liberty. The establishment of a meaningful rule of law in the UK may, therefore, require far-reaching constitutional reform, including the codification of the constitution, the introduction of an entrenched Bill of Rights, and the construction of a clear separation of powers between legislature and executive.

In its broad sense, the rule of law is a core liberal-democratic principle, embodying ideas such as constitutionalism and limited government to which most modern states aspire. In particular, the rule of law imposes significant constraints upon how the law is made and how it is adjudicated.

For example, it suggests that all laws should be ‘general’ in the sense that they apply to all citizens and do not select particular individuals or groups for special treatment, good or bad. It is, further, vital that citizens know ‘where they stand’; laws should, therefore, be precisely framed and
accessible to the public. Retrospective legislation, for example, is clearly unacceptable on such grounds, since it allows citizens to be punished for actions that were legal at the time they occurred.

In the same way, the rule of law is usually thought to be irreconcilable with cruel and inhuman forms of punishment. Above all, the principle implies that the courts should be impartial and accessible to all. This can only be achieved if the judiciary, whose role it is to interpret the law and adjudicate between the parties to a dispute, enjoys independence from government.

The independence of the judiciary is designed to ensure that judges are ‘above’ or ‘outside’ the machinery of government. Law, in other words, must be kept strictly separate from politics.

Nevertheless, the rule of law also has its critics. Some have, for instance, suggested that it is a truism: to say that the law ‘rules’ may acknowledge nothing more than that citizens are compelled to obey it.

In this narrow sense, the rule of law is reduced to the statement that ‘everybody must obey the law’. Others have argued that the principle pays little attention to the content of the law. Some have therefore argued that the rule of law was observed in the Third Reich and the Soviet Union simply because oppression wore the cloak of legality. Even its keenest defenders will
acknowledge that although the rule of law may be a necessary condition for just government, it is not in itself a sufficient one.

Marxist critics go further, however. Marxists have traditionally regarded law not as a safeguard for individual liberty but as a means for securing property rights and protecting the capitalist system.

For Marx, law, like politics and ideology, was part of a ‘superstructure’ conditioned by the economic ‘base’, in this case, the capitalist mode of production. Law thus protects private property, social inequality, and class domination.

Feminists have also drawn attention to biases that operate through the system of law, in this case, biases that favor the interests of men at the expense of women as a result, for instance, of a predominantly male judiciary and the legal profession.

Multicultural theorists have, for their part, argued that law reflects the values and attitudes of the dominant cultural group and so is insensitive to the values and concerns of minority groups.

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