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:
  1. Common ethics: An underlying moral value orientation of all laws;

  2. The supremacy of the law: all persons are subject to the law;

  3. Restraint of arbitrary power: no power can be exercised except according to procedures, principles and constraints contained in the law;

  4. Separation of powers: parliament exercises legislative power and there are restrictions on the exercise of legislative power by the executive;

  5. The principle of habeas corpus: arbitrary or preventive detention is prohibited;

  6. The principle nulla poena sine lege (no punishment without a law): legislation should be prospective and not retroactive;

  7. Judicial independence: an independent and impartial judiciary, with no special courts;

  8. 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;

  9. State protection for all: just as nobody should be above the law, nobody should be outside the protection of the laws of the land;

  10. Supremacy of civilian authority: military and police forces must be subject to civilian control or oversight;

  11. Prohibition of summary justice: crimes are viewed as individual acts; there must be no collective punishment of a group for acts of individuals;

  12. 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)
Man is free if he needs obey no person but solely the laws
~ Immanuel Kant

The rule of law was defined succintly by Friedrich Hayek in The Road to Serfdom as the idea that 'government is in all its actions bound by rules fixed and announced beforehand'. This is the opposite of rule by fiat, which involves the state doing what the hell it wants when it feels like it. Nineteenth century liberals (in the laissez faire sense) believed their achievement was in creating a government of laws, not of men. Their laws were fundamentally reactive, and established a framework inside which people could act.

An example is in order. For instance, contract law defines the rules whereby I may make a contract with my friend Bob. Once me and Bob have chosen of our own volition to make a contract, we have certain obligations to one another. However, we are only being burdened by these obligations because we chose to enter into a contract with one another, something no-one forced us to do. In a similar way, criminal law defines what the state can do to me when, I mean if, I hunt down Al Gore and give him a good slap. The guy's really annoying, but no-one forced me to hunt him down and give him a slap, so once again I knew the risks when I got on the plane.

The point of the rule of law is that it establishes a framework in which I can predict what the consequences of my actions are going to be. In the sphere of individual action, this is a safeguard against arbitrariness and tyranny inflicted by a powerful state. The state only has the legitimacy to enforce laws which the representatives of the people have established in the legislature or to exercise powers which were invested in the executive by the constitution. With the help of a lawyer and with the exception of judicial discretion, I can work out what the state's responses to my actions will be. This is the 'nightwatchman state', wandering around shining its lamp on transgressions and acting accordingly.

In the twentieth century, Britain and America began to practice something called social democracy. The social democratic state is an activist state which redefines the sphere of private liberty to exclude the negative right to property, and uses the surplus it gains thereby to gift positive rights to those deemed underprivileged. It is no longer the referee, but intervenes in the game to help the weaker team. In Britain, this was controversial but there was no constitutional opposition to it happening. The Westminster system vests complete sovereignty in the King-in-Parliament, and Parliament can do what the hell it wants, including over-riding any previous legislation it has passed. Hence, a progressive income tax abides by the rule of law as I know that if I earn £10, the government will take £1. Laws have begun to apply to the sphere that was previously my individual liberty, but I can still predict what is going to happen.

Things become more complicated when there is full-blown socialism, or any direct state management of the economy. When a government nationalizes an industry, it becomes involved in the day-to-day decisions of how to run that industry and how to interact with all the other entities this industry comes into contact with in the economy. This state is now not just responding to transgressions of the law like its more limited counterpart, but is directly involved in running a part of society's life. When a state involves itself in the nitty-gritty of economic life, it can no longer set down general principles in advance by which it will conduct itself. It will have to decide whether to invest in heavy industry or consumer goods, or whether to feed people with meat or fish. Its decisions will benefit one group and penalize another.

Thus socialism is incompatible with the rule of law, replacing it with rule by fiat. Once the state creates bureaucracies which are backed by its power, but make decisions without consulting the people's representatives, the rule of law cannot be said to exist. As the state's ability to plan increases, the individual's ability to plan diminishes accordingly. I cannot predict whether the state will choose to order me to produce shirts or pants, or predict whether the state will order me to go and work in a different factory altogether. By giving myself up to this arbitrary rule I supposedly gain economic security in return, for the state is pledged to shield me from the vagaries of the market.

Furthermore, my trouble multiplies when it is realised that distributional questions are at root normative, and not technical. The decision about who gains and who loses in a planned economy are based on a moral decision, which means the administrators issuing their orders have to make moral judgements. This arbitrary rule has the ability to put me out of a job, or reduce my real income to benefit someone else. The whole philosophy that one exists not for oneself, but for the good of some metaphysical conception of a higher community, allows the state to sacrifice my interests and needs for the benefit of others, or 'the community'.

When these decisions are made by a democratic legislature they are bad enough. For instance, there is nothing in the British system of parliamentary democracy except its tradition of sanity and morality to prevent a plurality of citizens deciding on the liquidation of a minority group, and passing legislation whereby this is enforced. However, our system of representative democracy makes this extremely unlikely to happen, having various checks and balances against such an eventuality. But if this same legislature creates a board or corporation with complete power over the nation's economic resources, and one able to act without further reference to the legislature, there is nothing to stop this small group of men reaching a bizarre consensus and implementing it. This is the nadir of democratic government, too far removed from the people to be considered 'democratic' at all.

No such extremity has ever existed in Britain or America, although students of Communism or fascism will recognise such a situation and its connotations for all of the liberties considered inalienable in the Anglo-American tradition. However, as just one example, the government by consensus which existed in Britain from the end of World War II to the epoch of Thatcherism had some of these characteristics. It was government in consultation with bodies such as businesses and trade unions, all of which were able to exert a significant influence over the government's policy and even to bring governments down. These unelected economic powers were able to subvert the rule of law by creating an 'informal constitution' where rules were made and enforced not by the people's representatives, but by bargaining between interest groups which represented a small fraction of the nation.

Such is the inevitable fate of political systems which take on redistributionist aims, or in any way overstep the mark of merely protecting negative rights and begin to promote positive ones. Every interest group will clamour to claim its representation in determining the course of policy, and the centre of gravity will shift away from laws passed by the people's representatives and to decisions made by fallible groups of civil servants in dark rooms in Whitehall, White House and Kremlin. We have passed the age of the rule of law and entered a gray area in which an activist state is controlled for brief periods by political parties which use it to satisfy the desires of their supporters in the hope of re-election. This creates an unstable and potentially dangerous situation in which the state's power reaches further than ever before, and no right is entirely inviolable.


On social democracy in the Anglo-American world, see - new liberalism, Thatcherism, Poor Law Amendment Act 1834, ratchet theory of government growth and social democracy in post-war America.

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