Rule-of-Law Principle

A Rule-of-Law Principle is a legal social principle that all national agents (national individuals and national organizations) should be governed by publicly disclosed legal codes, legal processes, and legal principles that establish accountability and equal treatment under the law.

• AKA: Rule-of-Law Principle, Nomocracy Principle.
• Context:
  • It can typically establish Legal Framework through rule of law standards.
  • It can typically protect Individual Rights through rule of law safeguards.
  • It can typically constrain Government Power through rule of law limitations.
  • It can typically promote Legal Certainty through rule of law requirements.
  • It can typically ensure Equal Treatment through rule of law applications.
  • It can typically require Government Officials to follow the same rule of law standards they create.
  • It can typically hold all citizens accountable equally regardless of social status or power position.
  • ...
  • It can often require the Separation of Power between a Legislative Branch, an 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 often prevent Legal Arbitrariness through rule of law constraints.
  • It can often guide Judicial Decision through rule of law interpretations.
  • It can often strengthen Democratic Institutions through rule of law reforms.
  • It can often resolve Rule of Law Conflicts through rule of law balancing tests.
  • It can often ensure Law Enforcement applies rule of law standards consistently and impartially.
  • It can often mandate Transparent Processes through rule of law transparency requirements.
  • It can often guarantee Due Process Rights through rule of law procedural protections.
  • It can often protect Marginalized Groups through rule of law equality safeguards.
  • ...
  • It can range from being a Formal Rule of Law Principle to being a Substantive Rule of Law Principle, depending on its rule of law scope.
  • It can range from being a National Rule of Law Principle to being an International Rule of Law Principle, depending on its rule of law jurisdiction.
  • It can range from being a Procedural Rule of Law Principle to being a Constitutional Rule of Law Principle, depending on its rule of law function.
  • ...
  • It can have Rule of Law Elements for rule of law implementation.
  • It can provide Rule of Law Protections through rule of law mechanisms.
  • It can perform Rule of Law Functions via rule of law institutions.
  • ...
  • It can be Legally Binding during rule of law enforcement.
  • It can be Constitutionally Protected in rule of law states.
  • It can be Internationally Recognized for rule of law development.
  • ...
  • It can evolve through Historical Development across rule of law civilizations.
  • It can assert that Government Institutions are subject to rule of law constraints.
  • It can require that Public Officials remain accountable under rule of law standards.
  • It can maintain that no entity is above rule of law requirements in rule of law societies.
  • It can foster Societal Trust through rule of law predictability.
  • It can promote Public Safety through rule of law enforcement standards.
  • It can establish Social Fairness through rule of law equal application.
  • It can contrast with Rule by Law Systems where powerful individuals can ignore rule of law constraints.
  • It can assume (A) legal courts; (B) general public norms; (C) "positivity" (law as something people have made and can control); (D) orientation to the public good; and (E) systematicity (law as a corpus juris rather than disconnected norms).
  • It can be associated with a Rule by Law Principle.
  • It can be measured through Rule of Law Measures.
  • ...
• Examples:
  • Rule of Law Principle Categories, such as:
    • Formal Rule of Law Principles, such as:
      • Legal Clarity Rule of Law Principle for rule of law comprehensibility.
      • Legal Stability Rule of Law Principle for rule of law predictability.
      • Procedural Regularity Rule of Law Principle for rule of law consistency.
    • Substantive Rule of Law Principles, such as:
      • Human Rights Rule of Law Principle for rule of law dignity protection.
      • Justice-Based Rule of Law Principle for rule of law fairness.
      • Equality Rule of Law Principle for rule of law non-discrimination.
    • Institutional Rule of Law Principles, such as:
      • Judicial Independence Rule of Law Principle for rule of law impartiality.
      • Separation of Powers Rule of Law Principle for rule of law check and balance.
      • Legal Accountability Rule of Law Principle for rule of law oversight.
      • Transparency Rule of Law Principle for rule of law public access.
      • Due Process Rule of Law Principle for rule of law fair treatment.
  • Rule of Law Principle Application Categories, such as:
    • National Rule of Law Principles, such as:
      • Constitutional Rule of Law Principle for rule of law fundamental structure.
      • Administrative Rule of Law Principle for rule of law bureaucratic constraint.
    • International Rule of Law Principles, such as:
      • Treaty-Based Rule of Law Principle for rule of law international cooperation.
      • Customary Rule of Law Principle for rule of law global standard.
  • Historical Rule of Law Principles, such as:
    • Ancient Greek Rule of Law Principle (4th century BC), with rule of law supremacy over rulers as articulated by Aristotle in Politics.
    • Ancient Roman Rule of Law Principle (1st century BC), with rule of law servitude concepts developed by Cicero.
    • Ancient Indian Rule of Law Principle (8th century BC), with rule of law dharma applications in the Mahabharata.
    • Ancient Chinese Rule of Law Principle (3rd century BC), with rule of law natural order concepts from the Huang-Lao school of Daoism.
    • Medieval English Rule of Law Principle (1215), with rule of law monarchy limitations established in the Magna Carta.
    • Enlightenment Rule of Law Principle (17th century), with rule of law governmental constraints theorized by John Locke.
    • American Constitutional Rule of Law Principle (1788), with rule of law judiciary roles described in Alexander Hamilton's The Federalist #78.
    • British Legal Rule of Law Principle (1885), with rule of law core elements articulated by A.V. Dicey.
    • Modern American Rule of Law Principle (1974), with rule of law presidential constraints confirmed in U.S. v. Nixon.
  • Contemporary Rule of Law Definitions, such as:
    • United States Courts Rule of Law Definition (2017), which defines rule of law principles as requiring laws that are publicly promulgated, equally enforced, independently adjudicated, and consistent with international human rights principles.
    • Australian Magna Carta Institute Rule of Law Definition, which uses the Rule of Law Pyramid to illustrate rule of law components.
    • Geoffrey Walker Rule of Law Definition (1988), which states that people (including government) should be ruled by law and obey it, and that the law should be such that people will be able and willing to be guided by it.
  • ...
• Counter-Examples:
  • Legal Procedural Rules, which provide specific technical instructions rather than foundational legal guidelines.
  • Legal Maxims, which are interpretive tools rather than comprehensive legal social principles.
  • Legal Customs, which represent historical legal practices rather than formalized legal social principles.
  • Legal Fictions, which are pragmatic legal constructs rather than genuine legal social principles.
  • Legal Presumptions, which serve as evidentiary shortcuts rather than substantive legal social principles.
  • Legal Policy, which lacks rule of law normative force.
  • Moral Principle, which lacks rule of law enforcement mechanism.
  • Political Ideology, which lacks rule of law neutrality.
  • Regulatory Guideline, which lacks rule of law constitutional status.
  • Authoritarian Legal System, which lacks rule of law governmental constraint.
  • Rule by Law System, which permits powerful individuals to ignore rule of law requirements.
  • Impunity State, which allows certain individuals to act without legal consequences.
  • Above the Law Status, which exempts specific persons from rule of law requirements.
  • Divine Right of Kings Doctrine, which places monarchs outside the bounds of rule of law constraints.
• See: Legal System, Constitutional Principle, Legal Framework, Governance Principle, Democratic Institution, Legal Accountability, Due Process, Equal Protection, Legal Process, Nomocracy, Separation of Power, Autocracy, Freedom of Speech Right.

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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". 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. 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.

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.

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?”

    

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,
  • NOTE: "the people (including the government) should be ruled by the law and obey it and the law should be such that people will be able and willing to be guided by it."

1974

• U.S. v. Nixon (1974) established that the President of the United States is not above the law.

1885

• (Dicey, 1885) ⇒ Albert Venn Dicey. (1885). “Introduction to the Study of the Law of the Constitution."
  • NOTE: ... the rule of law in his "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. ...
• Alexander Hamilton in The Federalist #78 explained that federal courts "were designed to be an intermediate body between the people and their legislature" to ensure Congress acted within constitutional authority.
• Samuel Rutherford (17th century) employed the rule of law concept in arguing against the divine right of kings.
• John Locke argued for a government based on established laws rather than arbitrary decisions.

1215

• The Magna Carta. (1215) limited the powers of the monarchy and asserted that the king was subject to the law.
• Cicero articulated that leaders should be servants of the law to ensure freedom.
• Aristotle (4th century BC) emphasized that "It is more proper that law should govern than any one of the citizens."
• The Mahabharata (8th-9th century BC) states, "The law is the king of the kings. No one is higher than the law. Not even the king."

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