The Rule of law and its origins:
The rule of law is a concept that describes the supreme authority of the law over
governmental action and individual behaviour. It corresponds to a situation where both
the government and individuals are bound by the law and comply with it. It is the
antithesis of tyrannical or arbitrary rule.
The rule of law is the product of historical developments over centuries and is linked to
the rise of the liberal democratic form of government in the West. The rule of law is the
subject of competing theories.
For some, the concept has a purely formal meaning.
Under this concept of the rule of law, the state must act in accordance with the laws it has
promulgated and these laws must meet a certain number of minimum characteristics. For
others, the concept has a wider, more substantive, meaning that incorporates ideals of
justice and fairness. Further meanings can also be ascribed to the concept according to
various political ideologies.
Although it is generally accepted that the extent to which a government adheres to the
rule of law is indicative of the degree of legitimacy of its actions, the divergent use of the
term illustrate that the concept is far from having achieved a universally accepted
meaning. Indeed, while some declare the concept to have attained the status of a new
universally-accepted political ideal following the end of the Cold War.
The rule of law has evolved over centuries and is inextricably linked to historical
developments that have led to the gradual emergence of liberal democracies and their
underlying modes of governance and legal systems.
The role that law plays in society was the subject of philosophical discussions in Greek
and Roman antiquity. In one of his last dialogues, The Laws (circa 360 B.C.), Plato is
credited with positing the idea that the government should be subservient to the law. The
idea was further refined by his student Aristotle in his work The Politics (circa 350 B.C.)
in which he contrasted the rule of law, reason, with the rule of man, passion, to explain
why the government should be bound by law as means to prevent arbitrary rule and the
abuse of power.Both philosophers agreed that laws must be promulgated for the
common good. These Greek works had a notable influence on Roman legal thought,
most notably on Cicero, who emphasised in De Legibus (circa 54-51 B.C.) that the law
must be for the good of the community as a whole, thereby subjecting law to ideals of
justice. The fall of the Roman Republic at the hands of emperors gave way to autocratic
rule. During the reign of Emperor Justinian I, Roman law was codified.
Meaning Of the Rule of law:
For some, the concept has a purely formal meaning, in which the rule of law requires the
state to act in accordance with the laws it has promulgated and these laws must meet a
certain number of minimum characteristics. However, for others, the concept has a wider,
more substantive, meaning that incorporate ideals of justice and fairness and respect for
fundamental rights.
Under formalistic theories – termed by some as the “thin rule of law” or “rule by law” –
the government must operate within the confines of the law, whatever those laws might
be. Contemporary formalistic theories tend to share the liberal view of the rule of law as
being equivalent to formal legality. From this perspective, the rule of law is therefore not
concerned with the content of the laws, but rather the optimal functioning of the legal
system with a view to providing individuals with a certain degree of predictability as
regards the legal consequences of their actions. Formal theories of the rule of law tends to
be the most widely accepted and are embraced by international development agencies,
because they are capable of universal appeal regardless of whether certain countries
recognise fundamental rights or democratic values.
In The Morality That Makes Law Possible (1964), Lon Fuller explained that, in order to
act as a proper guide to behaviour, the law must be characterised by the existence of a
system of rules that meets a certain number of characteristics. Although Fuller
acknowledged that the occasional and partial absence of any of these criteria was
unavoidable because a balance has to be achieved between legal certainty and society’s
ability to change laws, he also stressed that the complete absence of one or more criteria
would result in complete failure of the law. Although these criteria were not directed at
providing a definition of the rule of law but rather a definition of law itself, Fuller’s list of
characteristics has been incorporated one way or another in contemporary definitions of the rule of law.
Criticisms of the Rule of law:
It is undeniable that the rule of law forms an integral part of the liberal form of
democratic government worldwide. It goes without saying that “freedom under the rule
of law” is an oft-repeated mantra of Western liberal democracies. In this sense, adherence
for the rule of law therefore appears to carry with it a number of connotations of a social
and political nature. Seen in this light, the rule of law is not necessarily a politically
neutral concept.
For instance, some argue that a model of government based on the welfare state is
incompatible with the rule of law. In a later edition of Introduction to Study of the Laws
of the Constitution, Dicey had deplored what he saw as the decline in the rule of law
owing in part to the emergence of the welfare state and the adoption of legislation that
gave regulatory and adjudicatory powers to administrative entities without recourse to
judicial review by the courts. This concern has been shared by liberal commentators over
time. Like Dicey, Hayek argued that the welfare state was incompatible with the rule of
law. Nonetheless, it could be argued that these concerns have been tempered by the rise
of administrative law as a distinct area of law in common law countries, where the
ordinary courts have developed an elaborate body of case law that has placed limits on
administrative discretion, some of which has been codified into legislation. Dicey
criticised as being incompatible with the rule of law the existence in France of separate
administrative laws that deal with relations between government and the governed and
which did not fall within the jurisdiction of the ordinary courts. However, it is now
recognised that the establishment of administrative courts that are distinct from the civil
and criminal courts in countries following the civil code tradition has ensured to a large
extent that discretionary actions taken by the government do not go unchecked.
Moreover, it is undeniable that certain countries that follow the civil law tradition – for
example Belgium and Sweden – which pride themselves on having a political system that
embraces social welfare, are also widely accepted as adhering to the rule of law.
Natural Law and it’s Definition:
It is undeniable that the rule of law forms an integral part of the liberal form of
democratic government worldwide. It goes without saying that “freedom under the rule
of law” is an oft-repeated mantra of Western liberal democracies. In this sense, adherence
for the rule of law therefore appears to carry with it a number of connotations of a social
and political nature. Seen in this light, the rule of law is not necessarily a politically
neutral concept.
For instance, some argue that a model of government based on the welfare state is
incompatible with the rule of law. In a later edition of Introduction to Study of the Laws
of the Constitution, Dicey had deplored what he saw as the decline in the rule of law
owing in part to the emergence of the welfare state and the adoption of legislation that
gave regulatory and adjudicatory powers to administrative entities without recourse to
judicial review by the courts. This concern has been shared by liberal commentators over
time. Like Dicey, Hayek argued that the welfare state was incompatible with the rule of
law. Nonetheless, it could be argued that these concerns have been tempered by the rise
of administrative law as a distinct area of law in common law countries, where the
ordinary courts have developed an elaborate body of case law that has placed limits on
administrative discretion, some of which has been codified into legislation. Dicey
criticised as being incompatible with the rule of law the existence in France of separate
administrative laws that deal with relations between government and the governed and
which did not fall within the jurisdiction of the ordinary courts. However, it is now
recognised that the establishment of administrative courts that are distinct from the civil
and criminal courts in countries following the civil code tradition has ensured to a large
extent that discretionary actions taken by the government do not go unchecked.
Moreover, it is undeniable that certain countries that follow the civil law tradition – for
example Belgium and Sweden – which pride themselves on having a political system that
embraces social welfare, are also widely accepted as adhering to the rule of law.
Natural law’s Origin:
It is undeniable that the rule of law forms an integral part of the liberal form of
democratic government worldwide. It goes without saying that “freedom under the rule
of law” is an oft-repeated mantra of Western liberal democracies. In this sense, adherence
for the rule of law therefore appears to carry with it a number of connotations of a social
and political nature. Seen in this light, the rule of law is not necessarily a politically
neutral concept.
For instance, some argue that a model of government based on the welfare state is
incompatible with the rule of law. In a later edition of Introduction to Study of the Laws
of the Constitution, Dicey had deplored what he saw as the decline in the rule of law
owing in part to the emergence of the welfare state and the adoption of legislation that
gave regulatory and adjudicatory powers to administrative entities without recourse to
judicial review by the courts. This concern has been shared by liberal commentators over
time. Like Dicey, Hayek argued that the welfare state was incompatible with the rule of
law. Nonetheless, it could be argued that these concerns have been tempered by the rise
of administrative law as a distinct area of law in common law countries, where the
ordinary courts have developed an elaborate body of case law that has placed limits on
administrative discretion, some of which has been codified into legislation. Dicey
criticised as being incompatible with the rule of law the existence in France of separate
administrative laws that deal with relations between government and the governed and
which did not fall within the jurisdiction of the ordinary courts. However, it is now
recognised that the establishment of administrative courts that are distinct from the civil
and criminal courts in countries following the civil code tradition has ensured to a large
extent that discretionary actions taken by the government do not go unchecked.
Moreover, it is undeniable that certain countries that follow the civil law tradition – for
example Belgium and Sweden – which pride themselves on having a political system that
embraces social welfare, are also widely accepted as adhering to the rule of law.
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