Rule of Law Essay

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The rule of law is a concept that serves both evaluative and descriptive functions. In its evaluative role, the rule of law is a principle of political morality that is supposed to give a basic standard that states and their legal systems must meet in order to be legitimate. A state that lacks legitimacy, that is, does not respect the rule of law, at least to a minimal degree, has no right to give commands to ordinary people; its citizens may reasonably refuse or resist that state. A “rule of law state” (a concept which is sometimes given in the terminology of the German  legal tradition as the Rechtsstaat) refers to a family of legal institutions thought to protect individuals’ legal rights, particularly in the context of criminal prosecutions.

Though just about every detail of the rule of law is hotly contested across several academic disciplines, there is broad agreement about the states that exemplify it, namely, the Western democracies, to a greater or lesser extent. There is also broad agreement about those that exemplify its opposite:  a variety of regimes throughout history, from the Thirty Tyrants of Athens, through the French revolutionary government under the Committee of Public Safety, to the Soviet Union, Nazi Germany,  Haiti under the Duvaliers, and other states in which leaders rule through decrees backed up by terror.

In its most basic form, the evaluative component of the rule of law expresses the ideal that no person is above the law—that government officials and other elites obey the law and that laws, rather than persons, rule. This idea can be traced back at least as far as Aristotle’s Politics, where he argued that in a democracy  in which citizens are conceived of as political equals, the law rather than any individual should rule, and that in such a society the rightful role of officials is as mere administrators of the law. Often this basic conception of the demands of the rule of law comes attached to a broader vision of a well-organized legal community under which ordinary citizens, as well as officials, usually obey the law, the law is stable, and in which, as a result, people can ordinarily arrange their lives with a fair degree of certainty about the legal consequences of their actions.

The descriptive side of the rule of law can be taken to refer to a variety of legal institutions that are sometimes thought to distinguish rule of law states. Primarily, rule of law states will have formal laws, enacted in advance of their enforcement; in such a state, officials will not rule by case-by-case decree, nor will any citizen be punished for a crime not specified by the law. Rule of law states also commonly feature a number of other institutions, though a state need not have all of them to count as having the rule of law. The most prominent of these secondary institutions is a judiciary that is independent of the executive before which accused persons have a right to challenge official acts and be tried by a jury.

Beyond these broad outlines, the precise meaning of the rule of law is an object of considerable controversy. Moreover, there is a disciplinary divide between the two pairs of disciplines most concerned with the subject, philosophy and law, on one hand, and political science and economics, on the other.

In political science and economics those who study the rule of law tend to conceive of it in terms of social order. Most often, when researchers in those disciplines attempt to measure the rule of law, they focus on the extent to which a society is free from crime, and the extent to which private property rights are reliably protected.

By contrast, in philosophy and law scholars focus on a set of more abstract characteristics. Prominent among  them are the ideas that  the law must be predictable (laid out in advance, and giving fair notice to citizens of the laws that will apply to their actions) and general (applying to all on equal terms, not singling anyone out for special treatment). However, in philosophy and law, as in political science and economics, there is quite substantial disagreement about the details of these ideas and about the appropriateness of various elements of each discipline’s conventional conceptions of the rule of law.

There is also controversy within the philosophical and legal literature about the relationship between the ideas of “the rule of law” and “law” itself. Some scholars argue that  a state must meet the demands of the rule of law (at least to some extent) in order to have a legal system at all. On that argument, a state that totally fails to respect the rule of law does not really have laws, it just has, at most, a bunch of commands. Other scholars argue that a state can have a legal system without the rule of law, and that the rule of law is a moral principle that helps distinguish good legal systems from bad ones.

Corresponding with  the  controversy about what the rule of law is, there is also great controversy about why people should care. Some scholars argue that individuals should not, that the rule of law has no moral value, or is even pernicious and should be rejected. This critique is most commonly associated with the political Left, including Marxists, anarchists, and scholars in critical traditions, such as some varieties of feminism and critical race studies. For some of those rule of law skeptics, the rule of law is an unattainable ideal. Others worry that the rule of law commands a kind of blind formalism that demands that officials ignore the demands of case-by-case justice, and, by doing so, reinforces social hierarchies that are embedded into legal rules.

Among those who endorse the rule of law there is further  controversy about  the source of its value. In philosophy and law the dominant position is that the rule of law is valuable by virtue of the way it protects individual liberty. A minority position in philosophy and law argues that it is valuable by virtue of the way it protects ordinary people’s equality, both with respect to government officials and with respect to their fellow citizens. (Of course, both could be true; the rule of law could promote equality as well as liberty.) In political science and economics scholars rarely make explicit the moral value they ascribe to the rule of law; however,  much literature in these disciplines argues that the rule of law helps promote economic development. The implicit moral position of this literature is that the rule of law is valuable for utilitarian purposes, that is, because it makes people’s lives better.

Bibliography:

  1. Ginsburg, Tom. “Pitfalls of Measuring the Rule of Law.” Hague Journal on the Rule of Law, v.3/2 (2001).
  2. Gowder, Paul. “The Rule of Law and Equality.” Law and Philosophy, v.32/5 (2013).
  3. Tamanaha, Brian. On the Rule of Law: History, Politics, Theory. Cambridge: Cambridge University Press, 2004.

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