Encyclopedia Britannica - The Rule of Law
Rule of Law - 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. Arbitrariness is typical of various forms of despotism, absolutism, authoritarianism, and totalitarianism. Despotic governments include even highly institutionalized forms of rule in which the entity at the apex of the power structure (such as a king, a junta, or a party committee) is capable of acting without the constraint of law when it wishes to do so.
Ideas about the rule of law have been central to political and legal thought since at least the 4th century BCE, when Aristotle distinguished “the rule of law” from “that of any individual.” In the 18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted the legitimate authority of monarchs with the caprice of despots. It has since profoundly influenced Western liberal thought.
In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one—including the most highly placed official—is above the law. The legal constraint on rulers means that the government is subject to existing laws as much as its citizens are. Thus, a closely related notion is the idea of equality before the law, which holds that no “legal” person shall enjoy privileges that are not extended to all and that no person shall be immune from legal sanctions. In addition, the application and adjudication of legal rules by various governing officials are to be impartial and consistent across equivalent cases, made blindly without taking into consideration the class, status, or relative power among disputants. In order for those ideas to have any real purchase, moreover, there should be in place some legal apparatus for compelling officials to submit to the law.
Not only does the rule of law entail such basic requirements about how the law should be enacted in society, it also implies certain qualities about the characteristics and content of the laws themselves. In particular, laws should be open and clear, general in form, universal in application, and knowable to all. Moreover, legal requirements must be such that people are able to be guided by them; they must not place undue cognitive or behavioral demands on people to follow. Thus, the law should be relatively stable and comprise determinate requirements that people can consult before acting, and legal obligations should not be retroactively established. Furthermore, the law should remain internally consistent and, failing that, should provide for legal ways to resolve contradictions that can be expected to arise.
Despite those basic features, however, there has never been a generally accepted or even systematic formulation of the rule of law (but not for lack of attempts by jurists and political philosophers). The idea that the law should contribute to beneficial ways of channeling and constraining the exercise of public power can be interpreted in different ways; such differences are especially apparent over time and across different polities.
Institutions and Legal Culture
For such reasons, the rule of law is best seen not as a blueprint for institutional design but as a value, or cluster of values, that might inform such a design and that can therefore be pursued in a variety of ways. Nonetheless, several rather simple and generalizable institutional insights follow from the idea that those who judge the legality of exercises of power should not be the same as those who exercise it. For instance, a typical rule-of-law state will institutionalize some means of shielding legal officials from interference, political or otherwise, that threatens their independence. Accordingly, the institutional separation of the judiciary from other branches of government is commonly thought to be an important feature of rule-of-law states. Other measures to ensure fair access to legal institutions may also be important for rule-of-law regimes. In addition, a binding written constitution is widely believed to aid the rule of law and has been adopted by most states of the world.
While certain institutional traditions and conventions, as well as written laws, may be important to ensure that judicial decisions are grounded within plausible interpretations of existing laws, no single institutional character of a state should be seen as necessary or sufficient to the rule-of-law ideal. The rule of law is tied neither to any one national experience nor to any set of institutions in particular, although it may be better served in certain countries and by some institutions. Moreover, the institutional arrangements that ensure the rule of law in one polity might not be easily duplicated in or transplanted to another. Different polities embody their own judgments about how to implement specific rule-of-law ideals given their particular legal and cultural traditions, which naturally influence the character of their institutions. Nonetheless, the initial sociological condition for the rule of law is shared across cultures: for the rule of law to be more than an empty principle, most people in a society, including those whose profession it is to administer the law, must believe that no individual or group should be above the law.
https://www.britannica.com/topic/rule-of-law
Wikipedia - Rule of Law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. 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." The term rule of law is closely related to constitutionalism as well as Rechtsstaat and refers to a political situation, not to any specific legal rule.
Use of the phrase can be traced to 16th-century Britain. In the following century, the 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 made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon 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. In this sense, it stands in contrast to tyranny or oligarchy, where the rulers are held above the law...
The Oxford English Dictionary has defined rule of law this way:
The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.
Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.
https://en.wikipedia.org/wiki/Rule_of_law
Bill of Rights Institute - Rule of Law
If there is no constraint on a ruler’s power, then he can make whatever rules he pleases and not obey the rules he makes. He can also change the rules whenever he wants. If he doesn’t like someone who owns a business, he can make that business illegal, or create a regulation that he knows will bankrupt it. If he doesn’t like what people say about him, he can make criticism of him illegal. He has total power to punish anyone he wants and to exempt his friends from laws that others must obey.
When government officials can make any laws they please—and hold themselves above the law—there is less economic growth, less creativity, and less happiness. Entrepreneurs will not be willing to risk time and money starting businesses. Writers and speakers will restrain their words. Everyone will worry that his freedoms can be destroyed at the whim of a powerful government agent.
A government with unpredictable and arbitrary laws, wrote Madison, “poisons the blessings of liberty itself” (James Madison, Federalist No. 62, 1788).
[image] - George Washington is depicted addressing the Constitutional Convention of 1787 in this painting by Junius Brutus Stearns.
The many benefits of freedom we take for granted in the United States—to speak our minds, to gather with whom we please, to practice our religions or refrain from practicing a religion, and to build businesses—are protected because we live under the rule of law. This means that we are governed not by officials who can make any rules they want, but by laws that are difficult to change (and therefore stable), limited in scope, and applied to every citizen—including the people who make them. The rule of law means, as John Adams explained in the Massachusetts Constitution, “a government of laws and not of men.”
Of course, Adams knew that laws are made by someone. His point was that they should be consistent, just, and applied to everyone equally. Instead of having a king pass down edicts, the American Founders established a system in which our elected representatives make laws within the boundaries laid down by the Constitution and designed to serve, as the preamble to the Constitution makes clear, “the general welfare” of society.
[image] - United States Supreme Court Building
While kings often made rules designed to tell people what to do, a rule of law is more about crafting clear, simple, fair rules, and giving citizens the maximum possible freedom to decide for themselves how to live their lives. The Founders understood that the pursuit of happiness was a path of discovery, invention, and hard work that cannot be followed when government is constantly telling us what we may or may not do.
The Founders also understood that the rule of law is essential to protecting minority rights. Remember that they feared not just cruel kings, but tyrannical majorities that might be convinced to take away the liberty of people they dislike because of their race or wealth or religion. The rule of law insures that laws are not designed to target certain groups. Even if the majority of voters decided, for example, to make Muslims pay higher taxes, the Constitution (and the principle of the rule of law that it reflects) forbids singling out a minority group in this way.
Not only did the Founders establish a rule of law by limiting the power of government to make laws and guaranteeing that our rights are protected when laws are written, they also insured that laws will be made in the open, according to clear rules.
In Article I, Section 7 of the Constitution, for example, they required that any federal tax law must be written in the House of Representatives, whose short terms of office make them especially accountable to voters.
The Founders also crafted rules designed to slow the production of laws. While modern-day critics sometimes complain that it takes our government too long to act, this is exactly what the Founders had in mind. They feared what would happen if government officials were too quick to respond to temporary passions or could change rules with great speed.
[image] - This is the Old Senate Chambers in the United States Capitol. It is now only used for tours and ceremonies.
“It will be of little avail to the people,” Madison argued, “that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood…or undergo such incessant changes, that no man who knows What the law is today, can guess what it will be tomorrow” (James Madison, Federalist No. 62, 1788).
As with every part of the Constitution, the Founders understood that words on paper only have so much power. They knew that ultimately the rule of law depends on people with the courage, self-reliance, and wisdom to make prudent decisions, and who have enough tolerance for others to let them live as they see fit.
https://billofrightsinstitute.org/essays/rule-of-law
Text From The Legal & Ethical Environment Of Business
According to many rule of law systems, the attainment of peace relies on the establishment of a hierarchical authority structure. This recognition of the right to govern provides legitimacy. For instance, in the Code of Hammurabi and the Magna Carta, these rights are derived from religious authority. In the U.S. Constitution and the English Bill of Rights of 1689, the power is derived from the people.
Note the difference between power and authority. Power is the ability to make someone behave in a predictable manner. Authority draws its strength from legitimacy. Imagine that your friend told you that his mother granted him the right to govern others. Would you believe him? Probably not. Why? Because it is unlikely that you would recognize your friend’s mother as having a legitimate authority to bestow the right to govern on anyone, including your friend. Imagine, instead, the governor of your state. You probably recognize the authority of the governor to govern, because you recognize that the people, through representative government, have the authority to elect the governor to do so.
The rule of law of the federal government in the United States is composed of many different sources of law, including constitutional law, statutory law, rules and regulations promulgated by administrative agencies, federal common law, and treaties. Additionally, within the United States, several state and local jurisdictions exist, each having its own rule of law systems. Moreover, the U.S. system of governance is one of federalism, which allows different rule of law systems to operate side by side. In the United States, these systems are the federal government and the state governments.
Organizational structures for government—including who has the right to govern—are also set out in rule of law systems. For instance, the Code of Hammurabi identified a ruler: Hammurabi himself. The English Bill of Rights of 1689 required representative bodies. The U.S. Constitution organized the U.S. government by creating the legislative, executive, and judicial branches. These models minimally provide order and, in some cases, provide opportunities for the governed to participate in government, both of which create role expectations of the governed.
Notably, even though our Founding Fathers relied on prior rule of law systems when creating our Constitution, they were unable to resolve all challenges that exist when people live together. Today, for instance, one unresolved challenge is reflected in the tension between personal liberty and responsibility to state. We have many individual rights and personal liberties, but as some argue, we do not have many responsibilities to the state. We could have a system that requires greater duties—such as the legal duty to vote, to serve in public office or in the military, or to maintain public lands. Unresolved challenges highlight the fact that rule of law systems are not perfect systems of governance. Nevertheless, these systems create expectations for conduct, without which governance of conflict could not reasonably exist and peace could not be attained.
Online Library of Liberty - Rule of Law & US Constitutionalism
Rule of law, then, is not rule of the law, but a doctrine concerning what the law ought to be—a set of standards, in other words, to which the laws should conform. Merely because a tyrant refers to his commands and arbitrary rulings as “laws” does not make them so. The test is not what the rule is called, but whether the rule is general, known, and certain; and also whether it is prospective (applying to future conduct) and is applied equally. These are the essential attributes of good laws—laws that restrain but do not coerce, and give each individual sufficient room to be a thinking and valuing person, and to carry out his own plans and designs. This does not mean that the individual is free to do as he pleases; for liberty is not license. As the Framers knew well, absolute freedom would be the end of freedom, making it impossible for society to be orderly, safe from crime, secure from foreign attack, and effectively responsive to the physical, material, and spiritual needs of its members. Under God, said the exponents of the rule of law, the law governs us; it is not by mere men that we ought to be governed; we can appeal from the whims and vagaries of human rulers to the unchanging law.
Though this is a grand principle of justice, often it is difficult to apply in practice. Passion, prejudice, and special interest sometimes determine the decisions of courts of law; judges, after all, are fallible human beings. As the Virginia orator John Randolph of Roanoke remarked sardonically during the 1820s, to say “laws, not men,” is rather like saying “marriage, not women”: the two cannot well be separated.
Yet the Framers at Philadelphia aspired to create a Federal government in which rule of law would prevail and men in power would be so restrained that they might not ignore or flout the law of the land. The Supreme Court of the United States was intended to be a watchdog of the Constitution which might guard the purity of the law and forcefully point out evasions or violations of the law by the other branches of government or by men in public office.
The Framers knew, too, the need for ensuring that the President of the United States, whose office they had established near the end of the Convention, would be under the law—not a law unto himself. The President’s chief responsibility, in fact, is to enforce and uphold the law, and to “take care that the laws be faithfully executed.” Whereas the members of Congress and the Federal Judiciary, and other Federal and State officials, all take an oath “to support this Constitution” (Article VI, Clause 3), the President—and the President alone—swears on the Bible (or affirms) that he will “preserve, protect and defend the Constitution” (Article II, Section 1, Clause 8).
Thus in the final analysis the nation looks to the President as the person ultimately responsible for upholding the rule of law and the supremacy of the Constitution. By making him Commander-in-Chief of the armed forces and by giving him the power to supervise the heads of the various departments of the executive branch, the Constitution also confers upon the President the means by which he may fulfill his law enforcement responsibilities.
By and large, America has enjoyed rule of law, not of men. No President of the United States has ever tried to make himself dictator or to extend his term of office unlawfully. Martial law—that is, a suspension of the law and the administration of justice by military authorities in times of war, rebellion, and disorder—has never been declared nationwide. No party or faction has ever seized control of the Federal government by force or violence. The Constitution of the United States has never been suspended or successfully defied on a large scale. Thus the rule of law has usually governed the country since 1787—a record true of very few other countries of the world.
https://oll.libertyfund.org/page/rule-of-law-us-constitutionalism
Rule of Law vs. Rule by Law
What is the Rule of Law?
The Rule of Law is an intrinsically abstract idea, which finds itself grounded in philosophical and moral concepts. One of its most basic tenants is that all people, whether they be at the lowest level of citizenship or the highest, being the sovereign or government ruler, are all equal under the law itself. Simply put, this means that no one is above the law, and any law that is broken should be equally punishable across the board, regardless of status in society or the local community.
It is also associated with the concept of natural law, which basically claims that because we all belong to the larger human community, everyone must be treated under the same laws and possess the same rights.
What is Rule by Law?
In contrast, Rule by Law is a concept that sees the governing authority as somehow being above the law, and has the power to create and execute law where they find it to be convenient, despite the effect it has on larger freedoms that people enjoy. To expand on this idea, rule by law is a method that governments and people in power use to shape the behavior of people, and in terms of governing a country, mass groups of people. This usually has the end goal of psychologically or forcefully persuading people to agree with policy decisions they otherwise would not agree with.
https://vannormanlaw.com/rule-law-vs-rule-law/
https://worldjusticeproject.org/rule-of-law-index/factors/2022/
https://www.ruleoflaw.org.au/what-is-the-rule-of-law/
https://worldjusticeproject.org/rule-of-law-index/factors/2022/
