02 the Rule of Law - An Overview

7/29/2019 02 the Rule of Law - An Overview

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RULEOFLAW?

Dr. Azhar Hassan Nadeem

What is the


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" We are freebecause

we live under

civi l laws."Charles de Secondat Montesquieu


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The Rule of Law, in its most basic

form, is the principle that no one isabove the law.

Thomas Paine stated in his pamphlet Common

Sense (1776):

"For as in absolute governments theking is law, so in free countries the law

ought to be king; and there ought to beno other."


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In England, the issuing of the MagnaCarta was a prime example of the "rule

of law."

The Great Charter forced King John to

submit to the law and succeeded in

putting limits on feudal fees and duties


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Principle:

Governmental authority is legitimately exercised: only in accordance with written, publicly

disclosed laws

adopted and enforced in accordance withestablished procedural steps that arereferred to as due process.

The principle is intended to be a safeguard againstarbitrary governance, whether by a totalitarianleader or by mob rule.

Application of the rule of law


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The rule of law is hostile both todictatorship and to anarchy.

Samuel Rutherford was one of the first

modern authors to give the principletheoretical foundations, in Lex, Rex

(1644), and later Montesquieu in The

Spirit of the Laws (1748).
http://en.wikipedia.org/wiki/Lex%2C_Rexhttp://en.wikipedia.org/wiki/Montesquieuhttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/The_Spirit_of_the_Lawshttp://en.wikipedia.org/wiki/Montesquieuhttp://en.wikipedia.org/wiki/Lex%2C_Rexhttp://en.wikipedia.org/wiki/Lex%2C_Rexhttp://en.wikipedia.org/wiki/Lex%2C_Rex


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Hallmarks of adherence to the rule oflaw commonly include:-

Clear separation of powers Legal certainty

Principle of legitimate expectation

Equality of all before the law.

Modern Anglo-American Concept


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As an autonomous legal order, rule oflaw has at least three meanings.

First, rule of law is a regulator ofgovernment power.

Second, rule of law means equality

before law.

Third, rule of law means procedural andformal justice.

Three meanings of Rule of Law


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First, as a power regulator, rule of lawhas two functions:

i) it limits government arbitrariness andpower abuse

ii) it makes the government morerational and its policies moreintelligent.

Functions of Rule of Law as a regulator


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The opposite of rule of law is rule of person.

There are two kinds of rule of person:

i) Rule of the few persons," examplesof which include tyranny andoligarchy.

ii) Rule of person is "rule of the manypersons," an example of which is theAncient Greek democracies.


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In contrast, a key aspect of rule of law

is "limitation;"

Rule of law puts limits on the

discretionary power of the government,including the power to change laws.

This is why the western juridicaltradition is Roman, not Greek.


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Whenever there is discretion there isroom for arbitrariness, and . . . in a

republic no less than under a monarchydiscretionary authority on the part ofthe government must mean insecurityfor legal freedom on the part of itssubjects"

(Dicey, 1982, p. 110).

The solution to this problem, say liberaldemocrats, is rule of law.


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In the first place, the absolutesupremacy or predominance of regularlaw as opposed to the influence ofarbitrary power, and excludes theexistence of arbitrariness, ofprerogative, or even wide discretionaryauthority on the part of thegovernment"

(Dicey, 1982, p. 120).


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Second, if the government is to be restricted in itsexercise of discretion, the government has tofollow legal procedures that are pre-fixed and pre-announced.

As F. A. Hayek puts it, rule of law : "that a government in all its actions is bound

by rules fixed and announced beforehand

rules which make it possible to foresee withfair certainty how the authority will use its

coercive powers in given circumstances

and to plan one's individual affairs on thebasis of this knowledge"

(Hayek, 1994, p.80).


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For example, in constitutional and

criminal law, there is a prohibition on"ex post facto" laws, that is, no oneshould be punished for a crime not

previously defined in law.

In other words, the government cannot

simply define a new crime and apply thenew definition retrospectively.


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The rationale for this principle is that,

i) the government should not be allowed to

abuse its power by punishing individuals for

political or other conveniences;

ii) it would be grossly unjust and oppressive forthe government to punish someone for

behavior that was not known to be criminal at

the time of commission;

iii) to so punish individuals would result in so

many uncertainties that it would create great

inefficiencies.


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For another example, The key reason why liberal democrats do

not believe in the pure will theory oflegality is that, without rule of law as alimit, popular will can easily be corruptedby passions, emotions and short-termirrationalities.

As such, liberal democrats demand rule of

law because it helps us to behaveaccording to our long-term interest andreason.


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Rule of law, according to Dicey, is equality

before law.

"[Not only that . . . no man is above the

law, but (what is a different thing) that . .. every man, whatever be his rank or

condition, is subject to the ordinary law of

the realm and amenable to the jurisdictionof the ordinary tribunals. . . .


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The third meaning of rule of law isformal or procedural justice.

What is formal or procedural justice?Before we answer this question, weneed to answer a more preliminary

question:What is formalism?


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Max Weber categorizes legal systems

into four kinds: formally irrational

substantively irrational

formally rational substantively rational

Rationality refers to the generality anduniversality of law.


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Formality refers to the characteristic that the

criteria of lawmaking and lawfinding are

intrinsic to the legal system itself; that is, all

rules, procedures and decisions can be

deduced from the legal system itself.

In contrast, a legal system that emphasizes

substantive qualities of lawmaking and

lawfinding uses factors outside law, such asethical, emotional, religious or political

factors, to evaluate cases.


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To Weber, only a formally rational legalsystem can achieve "legal domination"(rule of law) through consistent

application of general rules, becauseonly a formally rational legal system canmaintain a "consistent system of

abstract rules" that is necessary for ruleof law.


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This kind of justice is called formal orprocedural justice, which "connotes the

method of achieving justice by

consistently applying rules and

procedures that shape the institutional

order of a legal system (Shen, 2000, p. 31).

Principles of Formal or Procedural Justice


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First, the legal system must have a

complete set of decisional and

procedural rules that are fair.

Second, the fair rules of decision and

procedure must also be pre-fixed andpre-announced.




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Third, these decisional and procedural rulesmust be transparently applied.

Fourth, these decisional and procedural rules

must be consistently applied.

When these four conditions are satisfied,

western judges and lawyers will say that theyhave achieved a certain kind of justice, which

is called formal or procedural justice.



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Note that this notion of justice is more concerned

with process and procedure than with the end result.

As Selznick puts it,

"legality has to do mainly with how policies and rules

are made and applied rather than with their

contents"(Selznick, 1969, as cited in Shen, 2000, p. 30).

In other words, as long as the process is fair,

transparent and consistent, justice is obtained and

legality is achieved.


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In a system that sacrifices procedural justicefor the sake of substantive justice, thedanger of arbitrary government power and

the threat to individual liberty will be toogreat.

Eventually, that system will lead tosubstantive injustice as well.


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In contrast, in a system that emphasizesprocedural justice,

arbitrary government power will bechecked,

liberty will be protected, and substantive justice will be preserved in

the long term

(if we believe that truth is best obtainedthrough contest and debate betweenequals).


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Without fair and just procedure, there

is no guarantee that the end result will

be just (that is, substantive justice

cannot be guaranteed).

As such, procedural justice is seen as a

necessary condition for substantivejustice.


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Procedural justice is a conditionfor constraining

government arbitrarinessand

protecting individual rights


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Third, as Max Weber points out,procedural justice results in:

consistency,

predictability calculability

that are desirable aspects of

economic and social life.


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Economic Growthand

The Rule of LawPer Capita Rs., 2005/6 projected

0500

1,0001,500

2,0002,500

3,0003,500

4,0004,500

5,000

Balu

chist

an

NWFP

Punjab

Sindh

Natio

nal

Subven/Other

Legacy

DivPool

Shared

OSR

Source: World Bank compilation of provincial budgets


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Economic growth, politicalmodernization,

the protection of human rights,and

other worthy objectivesare all believed to hinge,

at least in part, onthe rule of law.

Helen Yu and Alison Guernsey

Introduction to the Rule of Law


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Introduction to the Rule of Law

Politicians, lawyers, economists

and

policy-makers often use the term

rule of law

to characterize a certain type oflegal-political regime.

As the pace of globalization has increased

in the past two decades, many developingcountries have prioritized their policy

agendas to promote the rule of law.

What is the Rule of Law?


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What is the Rule of Law?

It can be understood as a legal-politicalregime under which the law restrains thegovernment by promoting certainliberties and creating order and

predictability regarding how a countryfunctions

In the most basic sense, the rule of lawis a system that attempts to protect therights of citizens from arbitrary andabusive use of government power.

Elements of the Rule of Law


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According toAmerican legal scholar Lon Fuller

identified eight elements of law whichhave been recognized as necessary

for a society aspiring to institutethe rule of law.



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1. Laws must exist and those laws should beobeyed by all, including government officials.

2. Laws must be published.

3. Laws must be prospective in nature so thatthe effect of the law may only take placeafter the law has been passed. For example,

the court cannot convict a person of a crimecommitted before a criminal statuteprohibiting the conduct was passed.




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4. Laws should be written with reasonable clarityto avoid unfair enforcement.

5. Law must avoid contradictions.

6. Law must not command the impossible.

7. Law must stay constant through time to allowthe formalization of rules; however, law alsomust allow for timely revision when the

underlying social and political circumstanceshave changed.

8. Official action should be consistent with thedeclared rule.


Beyond Fullers Elements


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Beyond Fuller s Elements

The rule of law, however, extends beyondmere regulations and is also shaped by theso-called institutional constraints on

government implied in Fullers elements.

Institutional constraint is the existence of anindependent judiciary; another is developing

ways of promoting transparentgovernance.

Beyond Fullers Elements


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Beyond Fuller s Elements

Informal constraints, such as local culture ortraditions that may encourage citizens toorganize their behavior around the law, alsohelp constrain the government, promote

liberty and, therefore, define the rule of law.

Although still seemingly vague, the rule of lawmay be most concretely defined as a theory

of governance relying upon a series of legaland social constraints designed to encourageorder and to prevent arbitrary andunreasonable exercise of government power.

The Rule of Law & Development


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The Rule of Law & Development

Modern economic development often comeswith the introduction of a market economy is

organized upon a rational, law-bound state.

The market economy brings buyers and sellersto the market for complex transactions and the

international sale of goods. In the age of

globalization, players in the market economy

can come from many different parts of the

world.

Law is important to the market economy


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Law is important to the market economybecause it is the common basis on which

parties can make agreements;

it provides parties with confidence thatdisputes can be resolved efficiently and

fairly.

For this reason, the predictability and

order that the rule of law promotes insubstantive laws is viewed as thestabilizing force behind much economicdevelopment.


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The rule of law helps set the rules of thegame in critical areas such as

investments, property, and contracts.

The rule of law also serves as an

important assurance of social rights and

government accountability.


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THANK YOU

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02 the Rule of Law - An Overview