Rule-of-Law Principle
A Rule-of-Law Principle is a social principle that all national agents (national individuals and national organizations) should be governed by publicly disclosed legal codes and legal processes.
- Context:
- It can (typically) often require the Separation of Power between a Legislative Branch, a Executive Branch and a Judiciary Branch.
- It can (often) include the need for Fairness, Rationality, Predictability, Consistency, Impartiality, and Equality Before The Law.
- It can assume (A) legal courts; (B) general public norms; (C), "positivity" (i.e., law as "something that people have made and people can control" (2008, P. 30)); (D) orientation to the public good; and (E) systematicity (for law is not merely a heap of independent norms, but a corpus juris).
- It can be associated to a Rule-by-Law Principle.
- It can be associated to a Rule-of-Law Measure.
- …
- Example(s):
- As described in Alexander Hamilton's The Federalist #78.
- As described in (Geoffrey et al., 1988)
- As described in (Dicey, 1885).
- As described by a Magna Carta.
- As described by Aristotle's Politics.
- …
- Counter-Example(s):
- Impunity, state of.
- Above the Law.
- Divine Right of Kings.
- See: Legal Process, Nomocracy, Separation of Power, Autocracy, Freedom of Speech Right.
References
2023
- (Wikipedia, 2023) ⇒ https://en.wikipedia.org/wiki/Rule_of_law Retrieved:2023-10-17.
- The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. It is sometimes stated simply as "no one is above the law". [1] The term rule of law is closely related to constitutionalism as well as Rechtsstaat. It refers to a political situation, not to any specific legal rule. The rule of law is defined in the Encyclopedia Britannica as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power."
Use of the phrase can be traced to 16th-century Britain. In the following century, Scottish theologian Samuel Rutherford employed it in arguing against the divine right of kings.[2] John Locke wrote that freedom in society means being subject only to laws written by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions on his liberty. "The rule of law" was further popularized in the 19th century by British jurist A. V. Dicey. However, the principle, if not the phrase itself, was recognized by ancient thinkers. Aristotle wrote: "It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws."
The rule of law implies that every person is subject to the law, including persons who are lawmakers, law enforcement officials, and judges. [3]
- The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. It is sometimes stated simply as "no one is above the law". [1] The term rule of law is closely related to constitutionalism as well as Rechtsstaat. It refers to a political situation, not to any specific legal rule. The rule of law is defined in the Encyclopedia Britannica as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power."
- ↑ https://www.bookbrowse.com/expressions/detail/index.cfm/expression_number/617/no-man-is-above-the-law
- ↑ Rutherford, Samuel. Lex, rex: the law and the prince, a dispute for the just prerogative of king and people, containing the reasons and causes of the defensive wars of the kingdom of Scotland, and of their expedition for the ayd and help of their brethren of England, p. 237 (1644): "The prince remaineth, even being a prince, a social creature, a man, as well as a king; one who must buy, sell, promise, contract, dispose: ergo, he is not regula regulans, but under rule of law ..."
- ↑ Hobson, Charles. The Great Chief Justice: John Marshall and the Rule of Law, p. 57 (University Press of Kansas, 1996): according to John Marshall, "the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature."
2017
- (US Courts, 2017) ⇒ https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law
- QUOTE: ... More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers. In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist #78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution. ... The American democratic system is not always based upon simple majority rule. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:
- Publicly promulgated
- Equally enforced
- Independently adjudicated
- And consistent with international human rights principles.
- The courts play an integral role in maintaining the rule of law, particularly when they hear the grievances voiced by minority groups or by those who may hold minority opinions. Equality before the law is such an essential part of the American system of government that, when a majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority, the Court may see fit to hear both sides of the controversy in court.
- QUOTE: ... More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers. In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist #78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution. ... The American democratic system is not always based upon simple majority rule. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.
2014
- (Tushnet, 2014) ⇒ Mark Tushnet. (2014). “Rule by Law Or Rule of Law?. ” Asia Pacific Law Review 22, no. 2
- ABSTRACT: This article examines some aspects of the distinction between the rule of law and rule by law, elucidating those concepts by focusing on their role in political systems with a dominant political party. After criticizing accounts in which the rule of law serves some instrumental purposes of the dominant party, such as promoting foreign investment, the article turns to more normative accounts of the rule of law. Drawing on American Legal Realism, it argues that standard components of the rule of law such as coherence and intelligibility do impose some normative constraints on dominant party behavior. Examining the concept of intelligibility in more detail, though, shows that those constraints are relatively weak, and depend importantly on the views prevailing in the legal profession about what a decision according to law is.
2010
- (Rule of Law, 2010) ⇒ https://www.ruleoflaw.org.au/what-is-the-rule-of-law/
- QUOTE: ... At its most basic level the rule of law is the concept that both the government and citizens know the law and obey it.
However the rule of law is also much larger than this. The relevance of the rule of law, and an understanding of its concepts, has its origins in the Magna Carta. There is no single agreed definition of the rule of law. However there is a core definition that has near universal acceptance.
“…most of the content of the rule of law can be summed up in two points:
- (1) that the people (including, one should add, the government) should be ruled by the law and obey it and
- (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it.”
– Geoffrey de Q. Walker, The rule of law: foundation of constitutional democracy, (1st Ed., 1988).
- …
Australia’s Magna Carta Institute uses the Rule of Pyramid to start discussion about the question “What is the Rule of Law?”
- QUOTE: ... At its most basic level the rule of law is the concept that both the government and citizens know the law and obey it.
2008
- (Ginsburg & Moustafa, 2008) ⇒ Tom Ginsburg, and Tamir Moustafa. (2008). “Rule by Law: The Politics of Courts in Authoritarian Regimes.”
1988
- (Geoffrey et al., 1988) ⇒ Geoffrey d. Walkere Q.. (1988). “The Rule of Law: Foundation of Constitutional Democracy.” Vol. 42 . Melbourne: Melbourne University Press,
1885
- (Dicey, 1885) ⇒ Albert Venn Dicey. (1885). "Introduction to the Study of the Law of the Constitution."
1835
- (Tocqueville, 1835) ⇒ Alexis de Tocqueville. (1835). "Democracy in America." Book I, Chapter 16
- QUOTE: ... I am therefore convinced that the prince who, in presence of an encroaching democracy, should endeavor to impair the judicial authority in his dominions, and to diminish the political influence of lawyers, would commit a great mistake: he would let slip the substance of authority to grasp the shadow. He would act more wisely in introducing lawyers into the government; and if he entrusted despotism to them under the form of violence, perhaps he would find it again in their hands under the external features of justice and law. ...