One of the questions that every
society must answer is:
How do we want to be ruled?
There would seem to be three
fundamentally different ways to answer this question:
- we're just going to pass on the whole rule thing (i.e. a state
of anarchy)
- we will be ruled by an individual or a group of individuals
- we will be ruled by laws
In this context,
ruled by refers to the
ultimate source of
authority
and the way in which this authority will be applied within the society.
I'll leave a discussion of the virtues of anarchy to others (i.e. I'm just
going to pass on the whole anarchy thing).
A society which allows itself to be ruled by an individual (i.e. a dictator)
or by a group of individuals (e.g. a ruling council) is a society which
has chosen the path of authoritarianism.
While Plato once said that the best form of government is rule by a
benevolent dictatorship, he also observed that benevolent dictators are
hard to find (i.e. founding a society on the assumption that an appropriately
benevolent dictator will always be available isn't exactly a great idea).
History since (and, presumably, before) the time of Plato would seem to provide pretty overwhelming proof that societies which are ruled by individuals
or groups don't prosper in the long run.
A society which allows itself to be ruled by laws has taken a distinctly
different approach.
Rather than being ruled by an individual or a group of individuals, such
a society has decided to allow itself to be ruled by
a consistent and universal set of laws.
Albert V. Dicey's 1885 work Law of the Constitution described the
notion of the rule of law as it applied to the (unwritten)
British Constitution (see Dicey's views on the rule of law and the supremacy of Parliament for more information).
Dicey defined the principles of the rule of law to be:
- Everyone is equal before the law
- No one can be punished unless they are in clear breach of the law
- There is no set of laws which are above the courts
Although most
believers in the notion of democracy
would probably accept the first two principles, the third one is
potentially quite controversial.
For example, it rules out the notion of a written
Constitution as the
source of legal power or authority.
Specifically, Dicey believed that the
common law foundation of the
English system provided better protection to the individual than could
a written Constitution (let's keep in mind that Dicey was describing
how the British system worked).
In order to not get bogged down on Dicey's third principle, I'm going to
ignore it and focus on an alternative definition of the rule of law which avoids the written vs unwritten constitution question entirely - a society which has agreed to be ruled by laws is a society which has decided that
- People are ruled by laws, not by the arbitrary decisions of an
individual or group of individuals
- Nobody is above the law
- Nobody is outside of the protection of the law
Let's explore each of these
principles in turn:
People are ruled by laws, not by the arbitrary decisions of
an individual or group of individuals
This principle is, essentially, what makes it possible to go about
our daily business without having to worry about being thrown in
jail or otherwise persecuted just because some authority figure
doesn't happen to like us.
By constraining the powers that be to act within a set
of laws, we are able to take these laws into account in
advance of a contemplated action and then proceed or not,
with an understanding of the legal consequences of the action.
Without this principle, one would simply never know what the
legal consequences of a contemplated action might be.
Note that the fact that it might require the services of an expert
(i.e. a lawyer) to determine the legal consequences is irrelevant
to the discussion at hand as the key point is that it is possible
not that it is necessarily easy.
Nobody is above the law
This principle ensures that nobody has immunity from the law.
As such, if anyone acts in a way which breaks the law then
that person is subject to the force of the law (i.e. they can be punished
by the courts or coerced by the courts to adhere to the law).
Note that the existence of a code of laws (i.e. essentially the
first principle) isn't very useful if the code of laws either doesn't
apply to or provides unlimited immunity to certain individuals or groups of
individuals.
Furthermore, although the likelihood that an individual would be
personally impacted by someone with immunity may be low, it is precisely
the lack of this principle which can make it very difficult to become,
for example, financially successful in a society which is not run by the
rule of law.
i.e. if one becomes sufficiently successful in a business
endeavour then those with immunity may simply decide to take over
one's business.
Nobody is outside the protection of the law
Although one could argue that an individual who has an unpleasant
encounter with someone with immunity has found themselves to be
outside the protection of the law, there is actually much more
to this third principle.
Someone who is outside the protection of the law will find
themselves unable to participate in or enjoy the fruits of the society
of which they are a putative member.
For example, they may not be able to educate their children in the
public system or they may not be able to use the courts to resolve
disputes with other members of the society (even if they are free
from capricious and arbitrary decisions
and nobody in the society is above the law).
The members of the black population of South Africa during apartheid
are classic examples of individuals outside the protection of the law.
It shouldn't come as any great surprise that
these three principles are
characteristics
of all mainstream democracies including those with
(e.g. the
United States)
and those without (e.g.
Great Britain) a written constitution.
Characteristics of the rule of law
A.P. Schmid of the
United Nations ODCCP (Office for Drug Control and Crime Prevention)
has produced the following list of characteristics of
the rule of law:
- Common ethics: An underlying moral value orientation of all laws;
- The supremacy of the law: all persons are subject to the law;
- Restraint of arbitrary power: no power can be exercised except according to procedures, principles and constraints contained in the law;
- Separation of powers: parliament exercises legislative power and there are restrictions on the exercise of legislative power by the executive;
- The principle of habeas corpus: arbitrary or preventive detention is prohibited;
- The principle nulla poena sine lege (no punishment without a law): legislation should be prospective and not retroactive;
- Judicial independence: an independent and impartial judiciary, with no special courts;
- Equality before the law: redress for breaches of the law must in principle be open to any citizen against any other citizen or officer of the state;
- State protection for all: just as nobody should be above the law, nobody should be outside the protection of the laws of the land;
- Supremacy of civilian authority: military and police forces must be subject to civilian control or oversight;
- Prohibition of summary justice: crimes are viewed as individual acts; there must be no collective punishment of a group for acts of individuals;
- The principle of proportionality: only minimum force should be used to stop law-breakers; punishment must be relative to the seriousness of the offense.
A rebuttal
Some have argued
(see
partisanship and the "rule of law" are obstacles to true democracy
for an example) that a putative
democracy which has agreed to be
ruled by laws is actually a society which has decided to allow itself
to be ruled by an
elite group - i.e. the
lawmakers.
Nothing could be further from the truth.
A democracy which has agreed to be ruled by laws is a democratic
society which has agreed to abide by the three principles listed above.
i.e.
- that people are ruled by laws, not by the arbitrary decisions of an
individual or group of individuals
- that nobody is above the law
- that nobody is outside of the protection of the law
Whether the authority to create these laws is based upon a written or an
unwritten constitution, the ultimate authority is the same.
In fact, whether such a society is a
pure democracy
(i.e. everyone gets to vote on everything),
a
representative democracy (i.e. citizens elect
representatives to make decisions for them), or something in-between,
it is the people who are the ultimate authority.
They can either change the law (in the case of a
pure democracy)
or change the lawmakers (in the case of a
representative democracy).
They are not at the
mercy of anyone or anything except their
own ability to either create good laws in the first place or
nominate
and
elect capable and trustworthly representatives to do the job for them.
Please see my writeup under partisanship and the "rule of law" are obstacles to true democracy for a more in-depth rebuttal.
Sources
- The web page titled "Towards a European Business Security Charter";
by A.P. Schmid; located at http://www.ebconline.org/files/busine_pr_schmid.doc
(last accessed 2002/10/14)
- the web page titled "The Rule of Law in Western Thought" located at
http://www1.worldbank.org/publicsector/legal/western.htm (last accessed 2002/10/14)
- the web page titled "The Rule of Law and its Relevance to the HKSAR";
by Jason Leung; located at http://www.jasononline.com/law/ruleoflaw.htm (last
accessed 2002/10/14)
See also
An interesting and relevant article called "Antonin Scalia: The Rule of Law as a Law of Rules" can be found at
http://eon.law.harvard.edu/bridge/Philosophy/rollor.txt.htm (last accessed 2003/04/07)