This is article has been written by Pranit Bhagat, pursuing BA-LLB at ILS Law College, Pune. In this article, we intended to provide rule of law practitioners with a review of the historical developments that have shaped the concept of the rule of law and summarize competing contemporary theories. It should also be useful for democracy and governance officers working with development organizations.
Origin and Meaning
The Rule of Law is a concept that describes the supreme authority of the law over governmental action and individual behaviour. It corresponds to a situation where both the government and individuals are bound by the law and comply with it. It is the antithesis of tyrannical or arbitrary rule. The rule of law is the product of historical developments over centuries and is linked to the rise of the liberal democratic form of government in the West. Under this concept of the rule of law, the state must act following the laws it has promulgated and these laws must meet a certain number of minimum characteristics. This concept has a wider, more substantive, meaning that incorporates ideas of justice and fairness. Although it is generally accepted that the extent to which a government adheres to the rule of law is indicative of the degree of legitimacy of its actions, the divergent use of the term illustrates that the concept is far from having achieved a universally accepted meaning. Indeed, while some declare the concept to have attained the status of a new universally-accepted political ideal following the end of the Cold War, others have on the contrary gone as far as to assert that the term has been misused and abused to such an extent that it has become a meaningless phrase, devoid of any true meaning.
- Supremacy of Law
The supremacy of law has always been a basic understanding of the rule of law that states that the law rules over all the people including those administering the law. The lawmakers have to give reasons that are justified under the law while exercising their powers to make and administer the law.
- Equality before the Law
The principles of supremacy of law have the duty of cheques and balances over the government on making and administering the law. Also, the principle of equality before the law has to make sure that the law is administered and enforced in the right manner. It is not enough to have a fair law but the law should be applied in the right manner as well. It should not discriminate between people through religion, sex, race, etc. This idea of the rule of law has been codified under the Constitution of India under Article-14 and the Universal Declaration of Human Rights under Article-7.
- Pre-dominance of the legal spirit
In including this as a requirement for the rule of law, Dicey has believed that it was not sufficient to simply include the above two principles in the constitution of a country. There must be an enforcing authority called the courts or judiciary. The courts should be the enforcers of the rule of law and must be impartial and free from all other external influences. Thus the freedom of the judicial system is an important pillar to this rule of law. Rule of Law has is said to be a system that has safeguards against official arbitrariness prevents anarchy, and also allows people to plan the legal consequences of their actions in modern parlance.
Rule of Law in Modern times
The rule of law is a phrase that we hear with increasing regularity from diverse quarters. We hear it in the pronouncements of world leaders, such as President Barack Obama recalling that adherence to “the rule of law serves as the foundation for a safe, free, and just society”. We hear it in the statements of diplomats commenting on key international events, such as the United Nations Secretary-General Ban Ki-Moon emphasizing the central role which the rule of law should play in Libya following the overthrow of Muammar Gaddafi. We hear it from dissidents who denounce their repressive government’s abuses, such as pro-democracy activist Aung San Suu Kyi commenting on the importance of upholding the rule of law and calling on the authorities in Myanmar to release political prisoners. We may even hear it from unlikely quarters, such as Chinese President Hu Jintao who declared following his appointment that The people’s Republic of China “must build a system based on the rule of law and should not pin our hopes on any particular leader”. Perhaps most surprisingly, we even hear it from the likes of Robert Mugabe, Zimbabwe’s autocratic President, who has asserted that “only a government that subjects itself to the rule of law has any moral right to demand of its citizens’ obedience to the rule of law”. It is clear from these examples that the concept can be the subject of disparate even contradictory usage. One of the reasons is that the rule of law today remains the subject of competing theories. Moreover, these do not always coincide with popular perceptions of what the rule of law consists in.
The Rule of Law and International Development
Following the end of the Cold War, many countries abandoned their former communist forms of government and embraced liberal democracy and capitalism. In the transitional period, many of those countries sought to reform their legal systems and international development agencies began funding projects to build “the rule of law” in those countries. The 1990s also saw the imposition of the rule of law benchmarks by development banks as a condition to the provision of financial assistance. The establishment of the rule of law is considered by donors as necessary to ensure sustainable economic development, encourage investment and trade, and ensure that countries emerging from conflict can transition to democracy. As a result, the rule of law has become a significant component of international development with billions of dollars spent in the last twenty years or so on reforming legal systems. Donor agencies, including the European Commission, the United States Agency for International Development, Japan International Cooperation Agency, as well as the World Bank, all fund rule of law projects in diverse locations around the globe, whether it be China, Ecuador, Liberia, or Papua New Guinea. Technical assistance is often provided to donor recipients by specialized non-government organizations including Avocats sans Frontières, the American Bar Association Rule of Law Initiative, and the International Legal Assistance Consortium, but private companies are also used on larger projects. Such initiatives are not without criticism. In line with other international development activities, many commentators denounce the lack of empirical evidence as to the effects and impact of such programs, a lack of proper coordination between donors, as well as the unsustainable nature of many programs. More damning is the charge that rule of law assistance programs have led to very limited long-term improvements on the ground, that programs are too narrow in focus because they only address judicial or legal institutions without at the same time addressing the police or prisons, that they lack clearly articulated objectives that are directly linked to improving the various constitutive elements of the rule of law and that, in some instances, such efforts have been counterproductive. Aspects of these criticisms can be attributed to the absence of a universally accepted definition of what amounts to the rule of law. In any event, most observers agree that much more needs to be done to develop a more consistent approach to rule of law assistance and take meaningful steps to measure the impact of the rule of law programs.
Criticisms of the Rule of Law
It is undeniable that the rule of law forms an integral part of the liberal form of democratic government worldwide. It goes without saying that “freedom under the rule of law” is an oft-repeated mantra of Western liberal democracies. In this sense, adherence for the rule of law, therefore, appears to carry with it a number of connotations of a social and political nature. Seen in this light, the rule of law is not necessarily a politically neutral concept. For instance, some argue that a model of government based on the welfare state is incompatible with the rule of law. In a later edition of Introduction to Study of the Laws of the Constitution, Dicey had deplored what he saw as the decline in the rule of law owing in part to the emergence of the welfare state and the adoption of legislation that gave regulatory and adjudicatory powers to administrative entities without recourse to judicial review by the courts. This concern has been shared by liberal commentators over time. Like Dicey, Hayek argued that the welfare state was incompatible with the rule of law. Nonetheless, it could be argued that these concerns have been tempered by the rise of administrative law as a distinct area of law in common law countries, where the ordinary courts have developed an elaborate body of case law that has placed limits on administrative discretion, some of which has been codified into legislation. Dicey criticized as being incompatible with the rule of law the existence in France of separate administrative laws that deal with relations between government and the governed and which did not fall within the jurisdiction of the ordinary courts. However, it is now recognized that the establishment of administrative courts that are distinct from the civil and criminal courts in countries following the civil code tradition has ensured to a large extent that discretionary actions taken by the government do not go unchecked. Moreover, it is undeniable that certain countries that follow the civil law tradition – for example Belgium and Sweden – which pride themselves on having a political system that embraces social welfare, are also widely accepted as adhering to the rule of law.
Conclusion and Future Prospects
In its present-day meaning, the rule of law is often used as a shorthand for the existence of good governance in a particular country. In the West and other countries that have adopted a liberal democratic model of governance, the rule of law is seen as essential for economic and
social development and as a necessary prerequisite for the existence of a democratic model of government. In his work, On the Rule of Law, History, Politics, Theory (2004), Brian Tamanaha has asserted that the rule of law “stands in the peculiar state of being the pre-eminent legitimating political ideal in the world today, without particular agreement upon precisely what it means”. He draws the analogy that the rule of law is like the concept of the good: “everyone is for it”, but no-one knows precisely knows what it is. While the concept of the rule of law is the subject of competing theories, the existence of a divergence of views as to its precise meaning does not invalidate the rule of law as a concept in law. Most theorists tend to agree that, at the very minimum it does include a requirement that the government observes a country’s laws and the existence of institutions and mechanisms which allow individuals to enforce the laws against officials. In the time it is hoped that the rule of law will gain not just universal acceptance as to its desirability, but also further agreement as to its precise meaning.