RULE OF LAW

Rule according to law; rule under law; or rule according to a higher law.

The rule of law is an ambiguous term that can mean different things in different contexts. In one context the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context the term means rule under law. No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems.

Rule According to Law

The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles. A distinction is sometimes drawn between power, will, and force, on the one hand, and law, on the other. When a government official acts pursuant to an express provision of a written law, he acts within the rule of law. But when a government official acts without the imprimatur of any law, he or she does so by the sheer force of personal will and power.

Under the rule of law, no person may be prosecuted for an act that is not punishable by law. When the government seeks to punish someone for an offense that was not deemed criminal at the time it was committed, the rule of law is violated because the government exceeds its legal authority to punish. The rule of law requires that government impose liability only insofar as the law will allow. Government exceeds its authority when a person is held to answer for an act that was legally permissible at the outset but was retroactively made illegal. This principle is reflected by the prohibition against ex post facto laws in the U.S. Constitution.

For similar reasons, the rule of law is abridged when the government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government official, the less they are based on law.

For example, the due process clause of the Fifth and Fourteenth Amendments requires that statutory provisions be sufficiently definite to prevent arbitrary or discriminatory enforcement by a prosecutor. Government officials must not be given unfettered discretion to prosecute individuals for violating a law that is so vague or of such broad applicability that evenhanded administration is not possible. Thus, a Florida law that prohibited vagrancy was held void for vagueness because it was so generally worded that it encouraged erratic prosecutions and made possible the punishment of normally innocuous behavior (Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 [1972]).

Well-established and clearly defined laws allow individuals, businesses, and other entities to govern their behavior accordingly (United States v. E.C. Investments, Inc., 77 F. 3d 327 [9th Cir. 1996]). Before the government may impose civil or criminal liability, a law must be written with sufficient precision and clarity that a person of ordinary intelligence will know that certain conduct is forbidden. When a court is asked to shut down a paint factory that is emitting pollutants at an illegal rate, for example, the rule of law requires the government to demonstrate that the factory owner failed to operate the business in accordance with publicly known environmental standards.

Rule Under Law

The rule of law also requires the government to exercise its authority under the law. This requirement is sometimes explained with the phrase "no one is above the law." During the seventeenth century, however, the English monarch was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Commons and ignore rulings made by the House of Lords. In the eighteenth century, absolute sovereignty was transferred from the British monarchy to Parliament, an event that was not lost on the colonists who precipitated the American Revolution and created the U.S. Constitution.

Under the Constitution, no single branch of government in the United States is given unlimited power. The authority granted to one branch of government is limited by the authority granted to the coordinate branches and by the bill of rights, federal statutory provisions, and historical practice. The power of any single branch of government is similarly restrained at the state level.

During his second term, President richard m. nixon tried to place the executive branch of the federal government beyond the reach of legal process. When served with a subpoena ordering him to produce a series of tapes that were anticipated to link him to the watergate conspiracy and cover-up, Nixon refused to comply, asserting that the confidentiality of these

tapes was protected from disclosure by an absolute and unqualified executive privilege. In united states v. nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Supreme Court disagreed, compelling the president to hand over the tapes because the Constitution forbids any branch of government from unilaterally thwarting the legitimate ends of a criminal investigation.

Members of the state and federal judiciary face a slightly different problem when it comes to the rule of law. Each day judges are asked to interpret and apply legal principles that defy clear exposition. Terms like "due process," "reasonable care," and "undue influence" are not self-defining. Nor do judges always agree about how these terms should be defined, interpreted, or applied. When judges issue controversial decisions, they are often accused of deciding cases in accordance with their own personal beliefs, be they political, religious, or philosophical, rather than in accordance with the law.

Scholars have spent centuries examining this issue. Some believe that because the law is written in such indefinite and ambiguous terms, all judicial decisions will inevitably reflect the personal predilections of the presiding judge. Other scholars assert that most laws can be interpreted in a neutral, objective, and apolitical fashion even though all judges may not agree on the appropriate interpretation. In either case the rule of law is better served when judges keep an open mind to alternative readings of constitutional, statutory, and common-law principles. Otherwise, courts run the risk of prejudging certain cases in light of their own personal philosophy.

Rule According to Higher Law

A conundrum is presented when the government acts in strict accordance with well-established and clearly defined legal rules and still produces a result that many observers consider unfair or unjust. Before the Civil War, for example, African Americans were systematically deprived of their freedom by carefully written codes that prescribed the rules and regulations between master and slave. Even though these slave codes were often detailed, unambiguous, and made known to the public, government enforcement of them produced negative results.

Do such repugnant laws comport with the rule of law? The answer to this question depends on when and where it is asked. In some countries the political leaders assert that the rule of law has no substantive content. These leaders argue that a government may deprive its citizens of fundamental liberties so long as it does so pursuant to a duly enacted law. At the nuremberg trials, some of the political, military, and industrial leaders of Nazi Germany unsuccessfully advanced this argument as a defense to Allied charges that they had committed abominable crimes against European Jews and other minorities during world war ii.

In other countries the political leaders assert that all written laws must conform with universal principles of morality, fairness, and justice. These leaders argue that as a necessary corollary to the axiom that "no one is above the law," the rule of law requires that the government treat all persons equally under the law. Yet the right to equal treatment is eviscerated when the government categorically denies a minimal level of respect, dignity, and autonomy to a single class of individuals. These unwritten principles of equality, autonomy, dignity, and respect are said to transcend ordinary written laws that are enacted by government. Sometimes known as natural law or higher law theory, such unwritten and universal principles were invoked by the Allied powers during the Nuremberg trials to overcome the defense asserted by the Nazi leaders.

The rule of law is a concept explain in classical time. In Greece aristotle wrote that "law should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign in only those matters which law is unable, owing to the difficulty of framing general rules for all contingencies." In ancient Rome the Corpus Juris Civilis established a complex body of procedural and substantive rules, reflecting a strong commitment to the belief that law, not the arbitrary will of an emperor, is the appropriate vehicle for dispute resolution. In 1215 magna charta reined in the corrupt and whimsical rule of King John by declaring that government should not proceed except in accordance with the law of the land.

During the thirteenth century, Thomas Aquinas argued that the rule of law represents the natural order of God as ascertained through divine inspiration and human reason. In the seventeenth century, the English jurist sir edward coke asserted that the "king ought to be under no man, but under God and the law." With regard to the legislative power in England, Coke said that "when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void." In the United States, alexander hamilton applied the rule of law to the judiciary when he argued in The Federalist, no. 78, that judges "have neither Force nor Will, but merely judgment."

Despite its ancient history, the rule of law was not celebrated in all quarters. The nineteenth-century English philosopher jeremy bentham described the rule of law as "nonsense on stilts." The twentieth century saw its share of political leaders who oppressed persons or groups without warning or reason, governing as if no such thing as the rule of law existed. For many people around the world, the rule of law is essential to freedom.

further readings

Cass, Ronald A. 2001. The Rule of Law in America. Baltimore: Johns Hopkins Univ. Press.

Hamilton, Alexander, James Madison, and John Jay. 1787–88. The Federalist Papers. Reprint, edited by Gary Wills, New York: Bantam Books, 1988.

Komesar, Neil K. 2001. Law's Limits: The Rule of Law and the Supply and Demand of Rights. New York: Cambridge Univ. Press.

Michener, Roger, ed. 1995. The Balance of Freedom: Political Economy, Law, and Learning. New York: Paragon House.

Pilon, Roger. 2000. The Rule of Law in the Wake of Clinton. Washington, D.C.: Cato Institute.

Scalia, Antonin. 1989. "The Rule of Law as a Law of Rules." University of Chicago Law Review 56.

Sirica, John. J. 1979. To Set the Record Straight: The Break-In, the Tapes, the Conspirators, the Pardon. New York: Norton.

Smith, Steven. 1995. "Nonsense and Natural Law." Southern California Interdisciplinary Law Journal 4.

Stoner, James. 1992. Common Law and Liberal Theory. Lawrence: Univ. Press of Kansas.

Wood, Diane P. 2003. "The Rule of Law in Times of Stress." University of Chicago Law Review 70.

cross-references

Discretion in Decision Making; Due Process of Law; Judicial Review; Jurisprudence; Moral Law; Nuremberg Trials; Rule in Shelley's Case; Stare Decisis.

Rule of Law

BIBLIOGRAPHY

The rule of law characterizes polities where coercive state action is efficiently exercised in accordance with generally applicable authoritative rules, adopted according to an agreed-upon and public procedure, and not contrary to certain fundamental natural rights. The concept is intrinsic to the Western idea of a legitimate legal system.

The most famous exposition of the rule of law was made by British constitutionalist Albert Venn Dicey (1835–1922) in his Introduction to the Study of the Law of the Constitution in 1895. Dicey saw the rule of law as embodying three “kindred conceptions”: (1) that no one is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land; (2) that the same general law applies to the rulers as to the ruled; and (3) that individual rights are enforced, not simply proclaimed (Dicey [1895] 1982, pp. 107–122). John Adams (1735–1826), in Article XXX of the 1780 Massachusetts Constitution, added a fourth, quintessentially American contribution to the rule of law: separation of powers. “The legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

Good organization has been an implicit part of the rule of law since King John (c. 1167–1216) of England was forced to approve the Magna Carta in 1215: “To no one will We sell, to no one will We deny or delay, right or justice” (Magna Carta, c1. 40).

Legalism (respect by the state for, and enforcement of, its laws) is also an important part of the rule of law. This legalism arguably characterized Soviet and, to a large extent, even Nazi rule, however. Legalism is necessary but not sufficient: fundamental individual rights, arguably inherent in Dicey’s third kindred conception, are necessary too.

In sum, the rule of law seems to comprise four requirements (five if separation of powers is added):

1. Government is bound by the law.
2. The law is discernible by citizens.
3. Application of the law is well-organized.
4. Ordered liberty is largely maintained; that is, citizens are reasonably secure in their persons and property.

This rule of law can, within these constraints, exist in different legal systems. Republics and parliamentary democracies, civil and common law systems, are compatible with it. Differing tax rates and differing notions of fundamental rights are also compatible with the rule of law. On the other hand, rule-of-law procedural rights, such as the presumption of innocence (citizens are to be treated as innocent until they have been proven guilty), nonretroactivity (no one can be held accountable for violating a law before it was in effect), and habeas corpus (detained persons have the right to have their custody justified both to them and to an independent judicial authority), are intrinsic to the rule of law. Procedure is related to substance here: only if a legal system were substantially and severely unjust might, for example, retroactivity be authorized to eliminate the injustice.

The concept is elusive and fluid, but utterly meaningful. British philosopher Michael Oakeshott (1901–1990) put it best in his essay “The Rule of Law”: “The rule of law bakes no bread, it is unable to distribute loaves or fishes (it has none), and it cannot protect itself against external assault, but it remains the most civilized and least burdensome conception of a state yet to be devised” (1983, p. 164).

SEE ALSO Due Process; Law

BIBLIOGRAPHY

Belton, Rachel K. 2005. Competing Definitions of the Rule of Law: Implications for Practitioners. Carnegie Endowment for International Peace. Democracy and Rule of Law Project. Carnegie Papers, Rule of Law series, no. 55. http://www.carnegieendowment.org/files/CP55.Belton.FINAL.pdf.

Cass, Ronald. 2001. The Rule of Law in America. Baltimore, MD: Johns Hopkins University Press.

Constitution of the Commonwealth of Massachusetts. 1780. http://www.mass.gov/legis/const.htm.

Dicey, Albert Venn. [1895] 1982. Introduction to the Study of the Law of the Constitution. Indianapolis, IN: Liberty Fund.

Oakeshott, Michael. 1983. On History and Other Essays. New York: Barnes and Noble.

Scalia, Antonin. 1989. The Rule of Law as a Law of Rules. University of Chicago Law Review 56: 1175–1188.

Shklar, Judith N. 1998. Political Thought and Political Thinkers. Chicago: Chicago University Press.

Tamanaha, Brian Z. The Rule of Law for Everyone? St. John’s Legal Studies Research Paper. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=312622.

Michael I. Krauss

RULE OF LAW

The rule of law is the general principle that government and the governed alike are subject to law, as regularly adopted and applied. The principle is nowhere express in the United States Constitution, but it is a concept of basic importance in Anglo-American constitutional law. In that context, it is not merely a positivist doctrine of legality, requiring obedience to any duly adopted doctrine, but a means to assure that the actions of all branches of government are measured against the fundamental values enshrined in the common law and the Constitution.

The rule of law has its roots in classical antiquity, in the Politics of Aristotle and the works of Cicero. As an Anglo-American legal principle, the concept may be traced to magna carta (1215). In the thirty-ninth clause of that instrument, King John promised the barons that "No free man shall be taken, imprisoned, disseized, outlawed, or banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and the law of the land." Four centuries later, with the principle well entrenched in the theory and practice of the English common law, edward coke challenged James I's assertion of the right to exercise an independent judicial power with the words of Henry Bracton: "Quod Rex non debet esse sub homine, sed sub Deo et lege" [The King ought not to be under man, but under God and the law.] After the chaos of revolution, commonwealth, and restoration, the Glorious Revolution of 1688 established the permanent subjection of the king to the law, both of the common law courts and of Parliament.

Coke's Reports and Institutes,john locke'sSecond Treatise of Government (1691), and the flood of English radical political writing that accompanied the events of the seventeenth and eighteenth centuries carried these ideas to the American colonies. They became a key element in the ideology of the American Revolution. thomas paine'sCommon Sense (1776) proclaimed, "that in America, the law is king. For as in absolute governments, the king is law, so in free countries the law ought to be king; and there ought to be no other." As the unprecedented era of constitution making that succeeded the American Revolution provoked more sophisticated analysis of the structure of government, it became clear that not only the executive but also the legislature must be subject to law. Thus, john adams more temperately but more tellingly expressed the principle of the rule of law in drafting the massachusetts constitution of 1780. The Declaration of Rights in that instrument called for the separation of powers, "to the end it may be a government of laws and not of men." Chief Justice john marshall gave practical effect to Adams's words in the actual application of the new federal Constitution, using them in marbury v. madison (1803) to bolster his argument that William Marbury had a judicial remedy for the withholding of his commission by the secretary of state.

The principle was elaborated and definitively labeled "the Rule of Law" by the leading nineteenth-century English constitutional theorist Albert Venn Dicey (1835–1922). In his influential work, Introduction to the Study of Law of the Constitution (1885), Dicey ranked the rule of law with parliamentary sovereignty and constitutional conventions as one of the three fundamental elements of the unwritten British constitution. He gave the term "rule of law" three meanings: a requirement that government act against the citizen only in accordance with "regular law" enforced in the "ordinary courts" and not arbitrarily or in the exercise of "wide discretionary authority"; a requirement that the government and all citizens be equal before the law and equally subject to the ordinary courts; and a formulation reflecting the fact that constitutional rights were grounded not in abstract principles but in "the ordinary law of the land" as enforced in the courts.

Dicey's views of the rule of law have been rigorously elaborated by later political theorists, notably Friedrich Hayek in his Constitution of Liberty (1960) and other works. The fundamental nature of the rule of law as the basis of a moral and just social order has been recognized in more general terms in works such as Lon Fuller's The Morality of Law (1964) and John Rawls's A Theory of Justice (1971). It is also seen in the efforts of internationalists in the 1960s to establish international doctrines of world peace and human rights through a "world rule of law." More recently, critics have challenged the legitimacy of the rule of law, characterizing it as simply a cover for the maintenance of power by privileged social classes. Roberto Unger, in Law and Modern Society (1976), questioned the viability of the rule of law in the modern welfarecorporate state as the liberal premises upon which it is based decline.

Dicey's elaboration of the rule of law has also been forcefully criticized in England and the United States because its prohibition of discretionary action is inconsistent with the widespread use of the administrative process that has become characteristic of modern democratic government. Kenneth Culp Davis, a leading American critic, attributed the virtual nonuse of the phrase in American judicial opinions to the unreality of Dicey's "extravagant version" of the doctrine. Its occasional appearance to highlight a discussion of fairness or legality reflects, according to Davis, only the tendency of some judges "to add the touch of poetry" to their work.

Nevertheless, the concept of the rule of law remains fundamental to Anglo-American constitutional jurisprudence. In Britain, it remains a device for calling upon the protections of the common law against legislative and executive intrusion. In the United States, at the most general level, the rule of law is invoked by judges as they seek to assure compliance by the federal and state governments with the guarantees of the bill of rights. Those guarantees, as interpreted by the courts, are binding upon the governments and individuals to whom they are addressed. The Supreme Court made this point clear in cooper v. aaron (1958), rejecting the position of defiance toward a federal court's school desegregation order taken by the governor and legislature of Arkansas.

More specifically, the concept of the rule of law embodies what Laurence H. Tribe has characterized as "the Model of Governmental Regularity." This model describes requirements of generality and prospectivity of legislation and procedural regularity in administration and adjudication that are articulated in and enforced through the ex post facto and bill of attainder clauses of the Constitution and the due process clauses of the Fifth and fourteenth amendments. Finally, the element of equality in Dicey's rule of law has received fundamental expression in the development of the equal protection clause of the Fourteenth Amendment. That clause, as interpreted and applied by the Supreme Court in the second half of the twentieth century, has provided constitutional support for the most profound changes that our society has seen, short of revolution or civil war.

L. Kinvin Wroth
(1986)

Bibliography

Allan, T.R.S. 1985 Legislative Supremacy and the Rule of Law. Cambridge Law Journal 44:111–143.

Dicey, Albert Venn 1885 Introduction to the Study of the Law of the Constitution. London: Macmillan.

Tribe, Laurence H. 1978 American Constitutional Law. Mineola, N.Y.: Foundation Press.