The Concept of The Rule of Law
The rule of law is closely linked to the concept of the modern state addressing the interests of the community and the general population of its territory. The aim of such a state is to create stable, favorable conditions for all the people in its territory to develop. The concept of the rule of law underpins these government functions, and seeks to prevent abuse of the state’s monopoly of force, for example to serve the interests of political and social elites.
There is no uniform international definition of the rule of law. The content and priorities of the concept are shaped by historical change, national differences and the influence of different social interests. It is nevertheless possible to expect some common threads that are often given different weighting:
–The principle of the legitimacy of the administration
–An independent, functioning judiciary
–Equality of all citizens in legislation and the application of law
–The primacy of the constitution, and a corresponding hierarchy of norms—from the abstract constitutional principle to specific administrative rulings
–The separation of powers between the legislative, the executive and
–The respect of human rights, at least civil and political rights
This last aspect—respect for human rights—is in inextricably linked the other elements of the rule of law. The human rights requirements of justice for example demonstrate the principle of an independent, functioning judiciary in key areas. Equality before the law and the principles of non discrimination are both central elements of protecting human rights, and also an integral part of the concept of the rule of law. Whereas human rights give rise to legal claims on the state for individuals and groups in particular, the other components of the concept of the rule of law more generally target the organization of the state and governance. Both concepts however serve the same goal, namely obliging government authorities to adhere to central legal principles, and constraining their despotism.
The relation between democracy and the rule of law is more complex. Observation of fundamental principles of the rule of law is essential for democratic participation in government decision-making processes to actually function. On the other hand, states with imperfect democratic structures can certainly achieve a high level of rule of law. Democratically legitimized decisions then find their limits in terms of international law where they encounter the core of human rights concerns—for example when they discriminate massively against particular sectors of the population (such as ethnic minorities or women). In any case the mutual relations between the different concepts emerge in a different light depending on the political context, and many political positions can be justified by arguments in terms of both human rights and the rule of law or democracy.
To the extent that they are not enshrined in international obligations in the field of human rights, the principles of the rule of law have no firm basis in international law. The form of the legal system and government organization remains an important part of the domains reserve of each sovereign state, which has shrunk as a result of globalization. This demands restraint when exerting international influence on the design of internal political systems. The principle of non interference under international law forbids individual states to exercise substantial pressure to force other states to take particular decisions in their domains reserve. Positive action in support of rule of law concerns that fall short of coercing state authorities do not however fall under the interference prohibition.
The rule of law is not a state of bliss that some states have achieved and others aspire to. Rather it represents an important guiding principle for government organizations and legal systems. No specific standards or general recipes for successful government organization can be derived directly from it. National laws and the political context determine the practical implementation of the principles of the rule of law.
The Rule of Law and Development
Rule of law concerns have only in recent years become a subject of discussion with regard to international development. In the World Bank’s concept of governance, for example, the legal framework for development is one of its stipulations for behavior conducive to development on the part of recipient states. The OECD Development Assistance Committee (DAC) takes a similar view: sustained development requires a positive interaction between economic and political progress. The DAC concept of good governance includes the rule of law and public sector management, combating corruption, and reduction of excessive military expenditure. Good governance is also closely related to the principles of participative development, democratization and human rights issues. The foreign policy report and the Federal Council’s 1993 North-South Guidelines identify the promotion of good governance and human rights, the rule of law and democratic processes as an explicit goal of Swiss North-South policy.
Government institutions and processes enforcing legal standards, subject to rule of law principles, are now considered to be an indispensable element of the infrastructure that a modern state has to provide, particularly in a market oriented economic system. An economically active private sector and a functioning civil society need a legal framework which permits both social and economic dynamism, and provides a minimum of stability. The rule of law makes a substantial contribution to the legal underpinning of freedom of action for non-governmental actors. People must be confident that government, administration and the law will adhere to the established legal standards in their particular case as in others; only then can they discern their own freedom of action and its limits in advance, and behave accordingly. An independent judiciary and a government organization with separation of powers further serve to prevent abuses by government and administration, and to peacefully resolve conflicts between different sectors of the population or between conflicting individual interests which would otherwise be resolved not on the basis of legal standards but according to the will of political or economic power holders. Promoting the rule of law is thus a central form of empowerment because it empowers the poorest and the most disadvantaged sectors of the population to assert their rights.
The principles of the rule of law primarily define the how of government action, leaving the what very loosely defined; the state’s substantive, political and economic objectives are only generally circumscribed. The principles of the rule of law do not define the nature of civil society’s freedom of action, or the nature of development and its legal and political framework. These specific concrete decisions remain a matter for the national political process—within the frame work of human rights constraints.
Without legal certainty, constitutional structures and control mechanisms, and without individual economic and social freedom of action, there is no firm basis for sustained development from which all economic actors can benefit without discrimination. It can importantly give rise to political and social tensions ultimately endangering the social and political stability necessary for development. But even in the short term, a lack of legal certainty, and inadequate reliability and credibility of government authorities can substantially increase the resources and time required for economic activities—aspects of particular concern to small enterprises.
The rule of law in itself constitutes a goal of development cooperation, but it is equally a means of promoting results-oriented government action and sustained economic development that benefits not only economic and political elites. Central elements of the concept of the rule of law are valid criteria for assessing the development-oriented behaviour of government authorities in partner countries. There is for example little prospect of successful development cooperation with government partners where state authorities only function according to the rules of corruption, or pursue economic self-interest.
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". It is a component of the Magna Carta which ensures the right of the person being arrested to know what evidence the arresting body has against them. A writ of habeas corpus is a court order that commands the custodial authority to present the arrested/detained person before a judge or court to determine the validity of the arrest. Its purpose is to help curb unlawful detainment by ensuring that anyone arrested or detained is entitled to a court appearence within a reasonable amount of time (normally within 48 hours of the arrest).
· 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.
Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.
Likewise, Aristotle endorsed the rule of law, writing that "law should govern", and those in power should be "servants of the laws."
Cicero wrote, "We are all servants of the laws in order that we may be free." During the republic, controversial magistrates might be put on trial when their terms of office expired. Under the empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.
An allusion to the rule of law applying to the Median kingdom is found in the Book of Daniel, where it is stated that not even that king can arbitrarily alter a law he has previously enacted: "The thing stands fast, according to the law of the Medes and Persians, which cannot be revoked."
The supremacy of law is by no means an exclusively western notion: in the Chinese philosophical school of Legalism in the 3rd century BC, Han Fei Zi articulated three principles of governance, the first being Fa, which states that laws, rather than rulers, run the state, and further that laws be written and public.
In Islamic jurisprudence rule of law was formulated before the twelfth century, so that no official could claim to be above the law, not even the caliph. However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.
Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government....
Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title is Latin for "the law is king" and reverses the traditional rex lex ("the king is the law"). John Locke also discussed this issue in his Second Treatise of Government (1690). Later, the principle was further entrenched by Montesquieu in The Spirit of the Laws (1748).
In 1776, the notion that no one is above the law was popular during the founding of the United States, for example Thomas Paine wrote in his pamphlet Common Sense 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." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."
Many organizations and scholars have advocated for the rule of law, and have taken positions regarding which interpretation of that concept they prefer.
The Rule of Law in Development Cooperation:
Ø Challenge to foreign policy coherence:
The rule of law is a special challenge to achieve a logically consistent Swiss foreign policy that has to serve various interests and objectives. Legislation on arms sales for example provides an opportunity for a suitably coordinated policy taking account of international constitutional concerns. Such legislation stipulates that when selling arms, many factors have to be taken into account, including the internal situation in the importing country, specifically with regard to the respect of human rights, and Switzerland’s efforts in development cooperation. There are further potential contradictions in other non-economic fields and in migration policy.
Ø National considerations:
Intervention in favour of the rule of law beyond the boundaries of a country’s own legal and governmental tradition must take account of specific national needs, legal traditions and priorities. Developing countries with a colonial past bear the stamp of the legal system and thinking of the former colonial power. Implementation of rule of law principles must take account of this and of traditional legal structures. In the case of development cooperation in particular in the field of law there is a danger of tending to consider legal traditions and organisational structures that have functioned in the home country to be generally valid, and not taking sufficient account of the circumstances and processes of particular countries; this is particulary so since legal thinking is not accustomed to international dimensions, especially in the field of constitutional law and administrative law. Cooperation with local partners, who often lack not so much expertise as financial resources to solve the problem, is therefore of particular importance.
Ø Flexible approaches for similar objectives:
As already explained, the concepts of legal certainty, human rights and democracy are closely interrelated. Accordingly, the actions necessary to promote them, often differ little in practice. This gives development cooperation a flexible approach: depending on the historical, cultural and political context, the same concerns can for example be promoted in a partner state from a constitutional, democratic or a human rights point of view. In many cases, where the rule of law, human rights and democracy are politically sensitive issues, the development line of argument can be the most helpful: from this perspective constitutional concerns seek primarily to create the structural conditions for development, to improve the central framework for development, and to enhance the efficiency of state structures.
Ø The rule of law as a transversal theme:
Many, if not practically all, programmes and projects relating to development cooperation have components of special relevance in terms of the rule of law. They concern and ultimately shape the relationship between the people and government authorities. Especially those programmes and projects involving legislation, the organization of administration and justice or specific acts of government authorities have to be tested for compatibility with rule of law concerns. Thus for example forestry and agriculture projects can influence central questions of the organization of the authorities responsible, and have a formative effect on their actual behavior towards the population concerned.
In the interest of making the most efficient use possible of financial resources, the donor state often insists on speedy implementation of the programmes and projects it has funded, without concerning itself with the political legitimisation and anchoring of the necessary decisions in the partner state. However the speed and ease with which programmes and projects can be carried out with authoritarian partners who take no account of the rule of law or participation often prove an ephemeral and hence illusory advantage. Reinforcing authoritarian government structures contributes little to sustainable, appropriate, autonomous development of the disadvantaged sectors of the population who are the actual intended recipients of the aid. Short-term efficiency is not synonymous with long-term effectiveness of development cooperation.
The rule of law is an essential element in the analysis of the situation and needs of every country and sector strategy, and in decisions on planning, implementation and evaluation of programmes and projects. Those responsible at the field level must be aware of the dimensions of legal and political frameworks of their actions. Programmes and projects should not run counter to rule of law concerns, but rather avoid risks and exploit opportunities for positive action in support of the rule of law. Where there is no rule of law framework for particular programmes or projects or for the whole country programme, it is advisable to concentrate development cooperation on creating and improving such a framework.
Ø The rule of law as a sectoral subject:
Specific programmes and projects in support of the rule of law are frequently advisable. They are necessary where serious defects are evident in the rule of law framework for development in general or for specific development cooperation programmes and projects. They are also particularly valuable where they complement other Swiss development cooperation activities, and can benefit from their country-specific knowledge, where there are specific openings and opportunities, or where special Swiss know-how can be mobilized.
Ø Possible content of programmes and projects:
From the experience of various donor countries and institutions the following areas can be broadly identified as those where development cooperation in support of the rule of law can be initiated. Legal reforms in particular areas of law (adaptation of substantive law to current needs, procedural law).
§ Organization of the state, government and administration, especially decentralization.
§ Organisation of the law and the police
§ Education of administration and legal personnel and police
§ Development of alternative conflict resolution procedures
§ Promoting transparency of the legal system
§ Promoting knowledge and awareness of the law in civil society
§ Promoting access of vulnerable groups to justice and administration
Ø Involvement of local partners:
Lasting results in this politically highly sensitive area depend especially on the positive involvement and interest of local governmental or non-governmental partners. Such commitment can be promoted from outside, albeit only to a limited extent.
Ø Government partners:
If constitutional concerns are to actually shape state structures and processes, a serious, enduring commitment of the authorities of the recipient country is essential. Serious political will and the prospect of a minimum of stability of the political structures in the recipient country is certainly essential for programmes and projects with government partners from the executive, legislative or judiciary. In the absence of such political will, there is no basis for successful cooperation with government partners. This however in no way eliminates the possibility of campaigns in favour of the rule of law through non-governmental channels.
Democratically legitimated parliaments have a particular role to play active cooperation with them serves to anchor fundamental development policy decisions politically and legally. Many donor institutions and countries still focus principally on the decision-making processes of the executive in the interest of short-term efficiency, without giving sufficient weight to its political legitimation.
In some countries, cooperation with local or regional governmental authorities and thus the establishment and strengthening of decentralized state structures represents an important opportunity to anchor rule of law thinking in authorities and citizens, to break up inefficient centralised structures, and to induce the authorities to respond appropriately to needs.
Ø Non-governmental partner organizations:
If rule of law principles are to actually fulfil their purpose, it is essential to have not only suitable state structures, but also (and perhaps above all) a rule of law self-awareness within civil society which regards the state as a service enterprise, and requires state authorities to behave accordingly.
Non-governmental partner organisations are particularly suitable for fostering such a sense of the law, either in the form of cooperation with local institutions or through private Swiss relief organisations, some of which have acquired experience over the years. In cases where cooperation with government circles is not possible because the will to implement rule of law reform is lacking, non-governmental programmes and projects are the only way to improve the legal framework for development in the long term.
Ø The need for financial and human resources:
Implementing rule of law programmes (shaping the administration, establishing an independent judiciary, legal education, etc.) often founders less on the absence of local expertise than on a lack of financial resources. The need for financial resources should not be underestimated, although the financial cost of programmes and projects to foster the rule of law is still relatively modest compared to major infrastructure projects.
Many countries with weak legal systems are however unwilling for various reasons to apply their own meagre resources to expand state structures—an initially unproductive investment, which will only in the long term have a positive effect on the development policy frame work.
Promoting rule of law principles is an equally long-term process, which is hardly likely to produce short-term success. It therefore needs substantial and constant development cooperation commitment over extended periods.
Ø New expertise:
Like human rights, the rule of law is a new subject for development cooperation, at least conceptually. To convert it into tangible actions requires legal, management and political science expertise, and careful analysis of the legal and political context in the recipient state. There is often a wealth of expertise in local Swiss development cooperation partner organizations; in other cases such expertise is lacking. The Federal Administration itself has some expertise and valuable practical experience, but the human resources to be able to mobilize specific services for development cooperation in the field of state and administration organization are often lacking.
It needs specialist knowledge in various forms and at various levels. How this specialist knowledge is to be anchored institutionally in the SDC will be one of the topics on the agenda of the forthcoming (1999) discussion of the SDC’s strategy. To some extent specialized competence needed for programmes and projects can be mobilized inside or outside the Federal Administration. Moreover basic training in constitutionalism is to raise the awareness of all SDC employees of these dimensions of their work.
Ø Coordination and cooperation:
Within the SDC there is already some experience with programmes and projects to promote the rule of law. Other donor states and institutions have even more systematic and broader practical experience which can be exploited to develop operational methods of work. In the context of particular countries, coordination and cooperation with other donors require attention to avoid duplication and to exchange local experience. Cooperation within the group of like-minded countries appears particularly promising and desirable.
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.
Rule of Law In India
The cocncept of Rule of Law is invoked often to convey the sense that the Administration cannot exercise arbitrary power and that it should function according to law. This idea is propounded by the supreme court in several cases, For example ;
Bacchan Singh v. State of Punjab AIR 1982 SC 1325 wherein the SC had emphasized that rule of law excludes arbitrariness and unreasonableness;
In ADM Jabalpur Case AIR 1976 SC 1207 it was laid down that “ Rule of law is the antiyhesis of arbitration …. Rule of law is now an ecepted norm in all civilized societies.
There are a lot many cases where the concept is being talked about and the SC has regularly interpreted it.
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. It firmly belives in adherance to law and respect to its institutions and norms.
v Cole, John et al. The Library of Congress, page 113 (W. W. Norton & Company 1997).
v Tamanaha, Brian Z. (2004). On the Rule of Law. Cambridge University Press. p. 9.
v Tamanaha 2004, p. 9.
v Craig, Paul P. (1997). "Formal and substantive conceptions of the rule of law: an analytical framework". Public Law: 467.
v Wormuth, Francis. The Origins of Modern Constitutionalism, page 28 (1949).
v Bingham, Thomas. The Rule of Law, page 3 (Penguin 2010).
v Cooper, John et al. Complete Works By Plato, page 1402 (Hackett Publishing, 1997)