Rule of Law

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The World Justice Project Rule of Law Index is an quantitative assessment tool designed to offer a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice. The Index provides data on eight dimensions of the rule of law: limited government powers; absence of corruption; order and security; fundamental rights; open government; regulatory enforcement; civil justice; and criminal justice. These factors are further disaggregated into forty-four indicators. Together, they provide a comprehensive picture of rule of law compliance. The index is typically published annually. - The Index rankings and scores are built from over 400 variables drawn from two new data sources: (i) a general population poll (GPP), designed by the WJP and conducted by leading local polling companies using a probability sample of 1,000 respondents in the three largest cities of each country; and (ii) a qualified respondents’ questionnaire (QRQ) completed by in-country experts in civil and commercial law, criminal law, labor law, and public health. To date, over 97,000 people and 2,500 experts have been interviewed in 99 countries and jurisdictions. Adherence to the rule of law is assessed using 47 indicators organized around eight themes: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice. In addition to country scores and rankings, the Index also includes key global findings as well as an analysis of regional strengths, rule of law challenges, best and worst performers, and trends to watch.
This entry shows how quantitative assessments tend to confound "rules of society" with the "rule of law". Example: The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. Research, like the Worldwide Governance Indicators, defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence."

The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This concept was developed by the International Commission of Jurists. Known as Delhi Declaration, 1959 which was latter on confirmed at logos in 1961. According to this formulation- "The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality". - According to Davis, there are seven principal meanings of the term “Rule of law: (1) law and order; (2) fixed rules; (3) elimination of discretion; (4) due process of law or fairness; (5) natural law or observance of the principles of natural justice; (6) preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and (7) Judicial review of administrative actions. So finally it may correctly be said that rule of law does not mean and cannot mean any government under any law. It means the rule by a democratic law-a law which is passed in a democratically elected parliament after adequate debate and discussion. Likewise, Sir Ivor Jennings says - "In proper sense rule of law implies a democratic system, a constitutional government where criticism of the government is not only permissible but also a positive merit and where parties based on competing politics or interests are not only allowed but encouraged. Where this exist the other consequences of rule of law must follow".

My own written demands would focus on the imbalance of power and the tendency to use it arbitrarily. For the EU to be a legitimate state, even a weak one, its legislature must control its executive. The rule of law means swift redress and advance compliance: but European law is neither swift nor enforcable without expensive retrospective justice.The ECB’s tendency to take politicised and arbitrary action is not just a problem for euro countries, but the whole project. Finally, the power to admit new states has to lie with existing populations. The EU’s logo is on my passport: before the borders of that institution are extended to Iraq (via Turkey) or the Donetsk warzone (via Ukraine), I would like not just a vote but a veto.

This problem of power is so big that both sides in the referendum have a vested interest in ignoring it. Even if we leave, it will still be a problem for Britain if there’s a power imbalance between people and institutions inside the EU. The pro-EU faction seem happy to tolerate glacial change, leaving generations of Europeans to live under a semi-democracy. The real power, meanwhile, sits with large corporations, banks and elites.

And here’s the strangest thing: for all the power concentrated at the top, the EU lacks the will to operate purposefully in the multipolar global power system. We know, roughly, what the US wants. Ditto for China and Russia. Ask what Europe wants – in Ukraine, Syria or the Arctic circle – and you’ll draw a blank. In a multipolar world, whose chaos zones are expanding, effective states with clear diplomatic aims and red lines matter.


Dicey (1885) The Rule of Law "means in the first place the ABSOLUTE SUPREMACY or PREDOMINANCE of REGULAR LAW as opposed to the influence of ARBITRARY POWER e.g. a man may be punished for a breach of law but he cannot be punished for nothing else. It means again Equality before the law – in this sense the rule of law conveys that no man is above the law. It means thirdly that the constitution is not the source but the consequence of rights of the individual as defined and enforced by the courts thereby meaning that those individual rights are fundamental and older than the constitution rather than emanate from the constitution”.
S.R. Das, one time Chief Justice of India: “The true concept of the Rule of Law as I conceive it transcends all periods, races, religion, creeds and countries. It prescribes a code of conduct alike for the individuals for the states and is designed to protect and uphold the liberties of the individuals not only against their fellow men but also as against the state.
It seeks to uphold and protect the fundamental human rights and liberties which alone make life worth living, liberty in matters of conscience and religion, freedom of speech, thought and expression, right of free association and movement, right to participate in and regulate the activities of one's own country, and other similar rights which ensure for the round well being of human societies”.
  • (1) everything must be done according to law;
  • (2) government should be conducted within a framework of recognized rules and principles which restrict discretionary power;
  • (3) the rule of law may mean that disputes as to legality of governmental actions are to be decided by judges who are wholly independent of the executive
  • (4) law should be even-handed between the government and the citizens such that there would be no unnecessary privileges and exemptions from law
  • (5) no one should be punished except for a legally defined crime.
In other words, the legislature must legislate just as the executive must execute while the judiciary must interpret the law as it is. Justice is the bedrock of the rule of law, and the rule of law is the bedrock of national stability.
In addition, it is behoved on the law-makers to observe the following guiding principles in the course of passing any law:
(a) any legislation which has a punitive or disciplinary provision must expressly provide for a hearing.
(b) any legislation which takes away property rights must provide for adequate compensation.
(c) adhominem legislations should be avoided i.e. legislations which are aimed at particular individuals.
Essentially, the function of the executive is to enforce the law and formulate governmental policies. In discharging this function, it is expected of the executive to discharge its functions within certain established and accepted principles of rule of law and some of these include the following:
1. there must be a leadership which has abiding faith in the observance of the Rule of Law as the only lasting basis for good government.
2. There must exist a leadership and an Executive invested with sufficient constitutional power and resources (financial and manpower of high quality) necessary to discharge its functions with efficiency and integrity.
3. the Executive must have such probity and quality that it regards a free Press as no danger to it, but rather as an instrument for building up a good body for public opinion or as a barometer of public feelings.

Social Security

4. the Executive must have a belief in the ideals of governmental responsibility to promote the objectives of social and economic security as will ensure a reasonable standard of economic security, social welfare and education for the mass of the people.
5. the Executive must regard the existence of a strong, well equipped and highly efficient Judiciary as a necessary partner in the search for national stability and welfare.
6. the Executive must have the services of a civil service, which is attractive, efficient, honest, contented, reasonably remunerated, and whose security is reasonably guaranteed, and which has loyalty to national progress backed by an admiration and respect for the ideals and methods of the leadership.


Judiciary is the arm saddled with the responsibility of interpreting the law. The principles of rule of law dictate that orders made by the judiciary must be obeyed.
The concept of rule of law as it relates to the judiciary can hardly be discussed without a reference to the doctrine of independence of judiciary. The judiciary as the last hope of the common man, it is expected to dispense justice without fear or favour, and at every time the judiciary must strictly abide with the following fundamental principles of rule of law:
1. that there must be a hearing before adjudication and
In the light of the foregoing points, is it correct or true to state that Rule of Law is a mixture of implied promise and convenient vagueness?
The Rule of Law thrives in a society which regards it as a normal way of life. Public opinion must ensure continuous and honest adherence to the Rule of Law as the true test of sound and acceptable public affairs and governmental conduct.
In practice, experiences have shown that governments and other players in public affairs do not always conduct their affairs in accordance with established principles of Rule of Law. More often than not, those in position of authority pay lip service to the concept and only put up a smoothscreen of compliance with the principles of the Rule of Law or observe it only when it is convenient for them.
Nowadays, governments, mostly in Africa, violate rules and regulations made by them with impunity, while promising the electorate a good governance and administration based on the Rule of Law which they themselves despise and neglect in the performance of their duties. Corruption, executive recklessness, arbitrariness, disobedience to court orders, among others, abound among most leaders of the world, particularly African rulers.

The rule of law is a cornerstone of contemporary constitutional democracy 1 

 as  was  underscored  by  its  role  in  cementing  the  recent

transitions from authoritarian or totalitarian regimes 2 

 to  constitutional

democracy in Eastern Europe and elsewhere. 3 

   In  the  broadest  terms,  the

rule of law requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function, and that no one within the polity be above the law. The three essential characteristics of modern constitutionalism are limiting the powers of government, adherence to the rule of law, and protection of fundamental rights. 4 

 In  the  absence  of  the  rule  of  law,  contemporary

constitutional democracy would be impossible. Beyond that, however, it is not clear what precise characteristics the rule of law must possess to help sustain constitutional democracy (...).

S. 1318 ff.: III. THE GERMAN RECHTSSTAAT AS STATE RULE THROUGH LAW

The German Rechtsstaat , the French É tat de droit, and the corresponding British and American conceptions all endorse the rule of law in the narrow sense but otherwise diverge significantly from one another. Moreover, some of these traditions are more ancient than others, and all of them have evolved over the years, though some of them have done so more than others. Since my primary focus is conceptual and directed to issues of legitimacy in pluralist settings, I shall only refer to the history and evolution of these traditions, with an eye to gaining further insights into the potential, limitations, and multiple dimensions of the rule of law. The Rechtsstaat is often treated as the German equivalent to the concept of the rule of law in the Anglo-American tradition. 47 Both concepts share some important elements in common. Chief among these is the relationship between the state and the institutionalization of a legal regime or, in other words, the state ’ s duty to wield its power through laws in accordance with fundamental principles of legality — including consistent implementation of publicly disseminated, generally applicable rules giving citizens notice regarding what conduct is subject to legal sanctions, coupled 46. The rule of law in the narrow sense has a much more ancient pedigree than the traditions being considered as it dates back at least as far as Aristotle. with fair procedural safeguards. Beyond that, however, the two concepts differ significantly, particularly in terms of their understanding of the relationship between the state and the law. Whereas the American conception of the rule of law is rooted in a somewhat antagonistic relationship between the state and the rule of law — which gives prominence to the above-noted paradox between the law as dependent on, and independent from, the state 48 — its German counterpart is squarely predicated on a veritable symbiosis between the law and the state. In the broadest terms, in the Rechtsstaat, law becomes inextricably tied to the state as the only legitimate channel through which the state can wield its power. Accordingly, “ state rule through law ” would be a much better approximation in English for “ Rechtsstaat ” than “ rule of law. ” If any state rule through law would do, then the Rechtsstaat would boil down to little more than the rule of law in the narrow sense. In actuality, though, the concept has significantly evolved since its implantation in the nineteenth century; the Rechtsstaat has always stood for much more than the rule of law in the narrow sense. The Rechtsstaat, which had its intellectual origins in Kant ’ s theory, 49 stood in the first half of the nineteenth century for rational state rule encompassing universal protection of formal rights for every individual within the ambit of a unified legal order, crafted by legislation and administered through a separate and independent process of adjudication. In contrast to the American notion of separation of powers, so long as legislation was kept separate from adjudication, the nineteenth century Rechtsstaat was equally compatible with a government (as opposed to a staat ) that was monarchic as with one that was democratic. 50 As it evolved from its Kantian roots toward more positivistic configurations in Bismarck ’ s late nineteenth century Germany, the Rechtsstaat became increasingly tied to issues of form rather than substance. (...) Accordingly, the Rechtsstaat opened the door to a state rule — through law that could function properly without having to rely on a value system derived from any particular religion or transcendental conception of ethics. In other words, the Rechtsstaat made possible the systematic deployment of a legal regime poised to accommodate a plurality of conceptions of the good. 53 The severance of the Rechtsstaat from the external constraints of transcendental religion or ethics further specifies what state rule through law is not, without revealing what it ought to be or whether it could ever altogether escape from the grip of contested religious or ethical values which might stubbornly linger within it. To better appreciate the potential for positive contribution of the nineteenth century Rechtsstaat, it is necessary to compare its Kantian and its positivist dimension and to examine how these might be reconciled. For Kant, a legal regime is legitimate if it is grounded in the right. Acknowledging that citizens have different interests and competing ideas about the pursuit of happiness, Kant recognizes that nothing like an actual consent of the entire citizenry could ever validate any piece of legislation. 54 Consistent with this, legitimacy cannot be established at the level of interests or of the good, but only at that of the just and the right — that is, by categorically treating all citizens as free and equal and as ends in themselves. In other words, a law can be legitimate only if it is reasonable for every citizen to accept it as being right and just. Pursuant to this criterion, the legislator is obligated, in Kant ’ s own words: to frame his laws in such a way that they could have been produced by the united will of a whole nation, and to regard each subject in so far as he can claim citizenship, as if he had consented within the general will. This is the test of rightfulness of every public law. 55 Kant ’ s test thus sets a counterfactual against which the rightness of law is to be measured. Regardless of how citizens actually feel or whether they would have voted for a law, the key question is whether it is proper for citizens — conceived as free and equal and as treating one another as ends in themselves — to have enacted the law in question as legislators and to have willingly accepted to be bound by it as citizens. If the answer is in the affirmative, then the law is legitimate. As Kant ’ s counterfactual test does away with the consideration of interests or of the good, it raises the question of whether the just and the right can be found beyond the realm of interests or whether it remains altogether beside it. In other words, is satisfaction of the counterfactual dependent on there being a realm of justice compatible with all conflicting interests and all competing conceptions of justice (a very strong requirement), or is it possible to satisfy the counterfactual regardless of what interests or conceptions of the good may be involved (a seemingly weak requirement)? A close look at Kant ’ s argument reveals that his conception of the just and the right lies both beyond and beside the realm of interests. More precisely, the right ascends beyond the good in connection with the fundamental rights and freedoms of the individual, but remains beside it when it comes to the criterion of self-legislation. As a consequence, Kant ’ s counterfactual criterion of self-legislation ultimately seems extremely weak. Under the test of self-legislation, as Kant explains, if a law is: such that a whole people could not possibly agree to it (for example if it is stated that a certain class of subjects must be privileged as a hereditary ruling class), it is unjust; but if it is at least possible that a people could agree to it, it is our duty to consider the law as just, even if the people is at present in such a position or attitude of mind that it would probably refuse its consent if it were consulted.


Test for self-legislation thus boils down to a requirement of formal equality before the law. So long as laws are equally applied to all, they must be deemed legitimate regardless of their content. When placed in its Enlightenment context, this test is by no means trivial, as it delegitimates all vestiges of status-based legislation typical of the Ancien R é gime . In today ’ s world, where feudal hierarchy has been widely banished from constitutional democracy, however, Kant ’ s test of self- legislation rings rather hollow. This can be illustrated, moreover, through Kant ’ s own example. Kant argues that if a proportional tax is imposed on the entire citizenry in order to finance an unpopular war, this would meet the test of self-legislation for it would be possible for all to accept the tax if they supported the war.

If the tax were imposed only on part of the citizenry, on the other hand, those singled out for that burden would have good reason not to accept it voluntarily even if they enthusiastically supported the war. While all this may be true, it seems largely beside the point. Without any meaningful consent for the war — whether directly or indirectly through endorsement of the decisionmaking process responsible for the war policy — it is difficult to conceive the tax as a plausible product of self-legislation. 58 Fundamental rights and freedoms seem to rest on more solid ground than self-legislation in so far as they can be legitimated beyond the realm of interests. Such legitimation, moreover, may depend on these rights being beyond interests in the sense of remaining consistent with all conceivable differences in interests. Otherwise, they could be beyond interests by stacking up against them, and thus, imposing boundaries on the legitimate pursuit of interests. The key right for Kant is the right to individual autonomy, 59 which he envisages as requiring freedom, equality, and the right to own property. 60 Also, in organized society, preservation of the individual ’ s autonomy depends on others treating that individual as an end in him or herself rather than merely as a means. If Kantian autonomy requires treating every individual only as an end, then the criterion of legitimacy for law is clear, but legitimate law is impossible. If, on the other hand, Kantian autonomy may be satisfied by treating every individual as more than a mere means — for example, through implementation of some version of the rights to liberty, equality, and property which would not foreclose all treatment as means — then law is certainly possible but could never be more than partially legitimated.

Arguably, confronted with an unpopular war, citizens could still agree that it ought to be financed to avoid disaster and that the resulting burden ought to fall equally on all rather than being disparate. Nevertheless, the latter agreement would fail the weak consent test set out above.

It may seem that those difficulties might be avoided by charging legislators with the duty to treat citizens as ends without extending that duty to citizens in their interactions with fellow citizens. Thus, laws could cast persons as ends regardless of the positions espoused by legal actors. This possibility must be rejected, however, for at least two crucial reasons. First, consistent with Kantian autonomy, for any legislation to be normatively justified, it must in some sense qualify as self- legislation, thus invalidating any normative distinction between the legislator and those subjected to legitimate legal norms. And, second, the legislator cannot, in the last analysis, remain above contested (or contestable) interests.


Quotation

  • The rule of law. It’s not just a good idea, it’s the law. — Carl Malamud (@carlmalamud) July 25, 2015
  • ".... 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." - Thomas Paine, Common Sense, 1776
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