The rule of law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will. For other uses, see Politics (disambiguation). ... The Politics series Politics Portal This box:      Consent of the governed is a political theory stating that a governments legitimacy and moral right to use state power is, or ought to be, derived from the people or society over which that power is exercised. ... Information on politics by country is available for every country, including both de jure and de facto independent states, inhabited dependent territories, as well as areas of special sovereignty. ... This list summarises the country subdivisions which have a separate article on their politics. ... The Politics series Politics Portal This box:      Political economy was the original term for the study of production, the acts of buying and selling, and their relationships to laws, customs and government. ... The Politics series Politics Portal This box:      Political history is the narrative and analysis of political events, ideas, movements, and leaders. ... The Politics series Politics Portal This box:      Political philosophy is the study of fundamental questions about the state, government, politics, liberty, justice, property, rights, law and the enforcement of a legal code by authority: what they are, why (or even if) they are needed, what makes a government legitimate, what... The Politics series Politics Portal This box:      Political Science is the field concerning the theory and practice of politics and the description and analysis of political systems and political behaviour. ... The Politics series Politics Portal This box:      International relations (IR), a branch of political science, is the study of foreign affairs and global issues among states within the international system, including the roles of states, inter-governmental organizations (IGOs), non-governmental organizations (NGOs), and multinational corporations (MNCs). ... Main International Relations Theories and derivates Realism & Neorealism Idealism, Liberalism & Neoliberalism Marxism & Dependency theory Functionalism & Neofunctionalism Critical theory & Constructivism International relations theory attempts to provide a conceptual model upon which international relations can be analyzed. ... This is a list of notable political scientists. ... The Politics series Politics Portal This box:      Comparative politics is a subfield of political science, characterized by an empirical approach based on the comparative method. ... The Politics series Politics Portal This box:      Public administration can be broadly described as the study and implementation of policy. ... The Politics series Politics Portal This box:      This article is about the sociological concept. ... Street-level bureaucracy is a term used to refer to a public agency employee who actually performs the actions that implement laws. ... The Politics series Politics Portal This box:      Separation of powers is a term coined by French political Enlightenment thinker Baron de Montesquieu[1][2], is a model for the governance of democratic states. ... The Politics series Politics Portal This box:      In the law, the judiciary or judicial system is the system of courts which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes. ... A legislatureis a type of representative deliberative assembly with the power to ratify laws. ... “Sovereign” redirects here. ... The psychodynamics of decision-making form a basis to understand institutional functioning. ... For other uses, see Politics (disambiguation). ... This article is about the political process. ... Vote redirects here. ... For theological federalism, see Covenant Theology. ... A form of government (also referred to as a system of government or a political system) is a system composed of various people, institutions and their relations in regard to the governance of a state. ... Political Ideologies Part of the Politics series Politics Portal This box:      An ideology is an organized collection of ideas. ... “Electioneering” redirects here. ... Political Parties redirects here. ...

Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy. Samuel Rutherford was one of the first modern authors to give the principle theoretical foundations, in Lex, Rex (1644), and later Montesquieu in The Spirit of the Laws (1748). For other uses, see Law (disambiguation). ... In United States law, adopted from English Law, due process (more fully due process of law) is the principle that the government must normally respect all of a persons legal rights instead of just some or most of those legal rights when the government deprives a person of life... Samuel Rutherford Samuel Rutherford (1600? – 1661) was a Scottish Presbyterian theologian and author. ... Montesquieu can refer to: Charles de Secondat, Baron de Montesquieu Several communes of France: Montesquieu, in the Hérault département Montesquieu, in the Lot-et-Garonne département Montesquieu, in the Tarn-et-Garonne département This is a disambiguation page — a navigational aid which lists other pages... The Spirit of Laws (French: De lesprit des lois) is a book on political theory by Charles de Secondat, Baron de Montesquieu, published in 1748. ...

In continental Europe and legal thinking, the rule of law has frequently, but not always, been associated with a Rechtsstaat. According to modern Anglo-American thinking, hallmarks of adherence to the rule of law commonly include a clear separation of powers, legal certainty, the principle of legitimate expectation and equality of all before the law. Continental Europe, also referred to as mainland Europe or simply the Continent, is the continent of Europe, explicitly excluding European islands and, at times, peninsulas. ... Rechtsstaat is a term borrowed from German jurisprudence which literally means a law-based state or constitutional state. It is a state in which the exercise of governmental power is constrained by the law, and is often tied to the Anglo-American concept of the rule of law. ... For other uses, see England (disambiguation). ... The Politics series Politics Portal This box:      Separation of powers is a term coined by French political Enlightenment thinker Baron de Montesquieu[1][2], is a model for the governance of democratic states. ...

The concept is not uncontroversial, and it has been said that "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use".^[1]

Overview

The contrast between the rule of men and the rule of law is first found in Plato's Statesman and Laws and subsequently in Aristotle's Politics, where the rule of law implies both obedience to positive law and formal checks and balances on rulers and magistrates. For other uses, see Plato (disambiguation). ... For other uses, see Aristotle (disambiguation). ...

Thomas Aquinas defined a valid law as being one that Saint Thomas Aquinas, O.P.(also Thomas of Aquin, or Aquino; c. ...

• is in keeping with Reason
• was established by a proper authority
• is for the purpose of achieving good
• and was properly communicated to all.

In his treatise, Law of the Constitution (10th Ed., 1959), pp. 187, et seq., Dicey identified three principles which together establish the rule of law: (1) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts."

— Halsbury's Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6, footnote 1

... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.

— Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.

Another definition can be found at Halsbury's Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6

The legal basis of government gives rise to the principle of legality, sometimes referred to as the rule of law. This may be expressed as a number of propositions, as described below.

(1) The existence or non-existence of a power or duty is a matter of law and not of fact, and so must be determined by reference either to the nature of the legal personality of the body in question and the capacities that go with it, or to some enactment or reported case. As far as the capacities that go with legal personality are concerned, many public bodies are incorporated by statute and so statutory provisions will define and limit their legal capacities. Individuals who are public office-holders have the capacities that go with the legal personality that they have as natural persons. The Crown is a corporation sole or aggregate and so has general legal capacity, including (subject to some statutory limitations and limitations imposed by European law) the capacity to enter into contracts and to own and dispose of property. The fact of a continued undisputed exercise of a power by a public body is immaterial, unless it points to a customary power exercised from time immemorial. In particular, the existence of a power cannot be proved by the practice of a private office.

(2) The argument of state necessity is not sufficient to establish the existence of a power or duty which would entitle a public body to act in a way that interferes with the rights or liberties of individuals. However, the common law does recognise that in case of extreme urgency, when the ordinary machinery of the state cannot function, there is a justification for the doing of acts needed to restore the regular functioning of the machinery of government.

(3) If effect is to be given to the doctrine that the existence or non-existence of a power or duty is a matter of law, it should be possible for the courts to determine whether or not a particular power or duty exists, to define its ambit and provide an effective remedy for unlawful action. The independence of the judiciary is essential to the principle of legality. The right of access to the courts can be excluded by statute, but this is not often done in express terms. A person whose civil or political rights and freedoms as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) have been infringed is entitled under the Convention to an effective right of access to the courts and an effective national remedy. On the other hand, powers are often given to bodies other than the ordinary courts, to decide questions of law without appeal to the ordinary courts, and sometimes in such terms that their freedom from appellate jurisdiction extends to their findings of fact or law on which the existence of their powers depends.

(4) Since the principal elements of the structure of the machinery of government, and the powers and duties which belong to its several parts, are defined by law, its form and course can be altered only by a change of law. Conversely, since the legislative power of Parliament is unrestricted, save where European Community law has primacy, its form and course can at any time be altered by Parliament. Consequently there are no powers or duties inseparably annexed to the executive government.

2006 World Map of the Rule of Law Index, which measures the extent to which agents have confidence in and abide by the rules of society. Colors range from green (top quartile), to yellow (middle high), orange (middle low) and red (bottom quartile).

In American law, the most famous exposition of the same principle was drafted by John Adams for the constitution of the Commonwealth of Massachusetts, in justification of the principle of separation of powers: Image File history File links No higher resolution available. ... Image File history File links No higher resolution available. ... 2005 World Map of the Corruption Index, which measures the degree to which corruption is perceived to exist among businesses, public officials and politicians. ... The United States Constitution, the supreme law of the United States The United States Reports, the official reporter of the Supreme Court of the United States The law of the United States was originally largely derived from the common law of the system of English law, which was in force... For other persons named John Adams, see John Adams (disambiguation). ... This article is about the U.S. state. ...

In the government of this commonwealth, 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.

— Massachusetts Constitution, Part The First, art. XXX (1780).

The last phrase, "to the end it may be a government of laws and not of men," has been quoted with approval by the U.S. Supreme Court and every state supreme court in the United States. The Constitution of the Commonwealth of Massachusetts is the fundamental governing document of the Commonwealth of Massachusetts. ... The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... In the United States, the state supreme court (known by various names in various states) is the highest state court in the state court system. ...

A similar concept is found in Common Sense (1776) by Thomas Paine: Common Sense redirects here. ... For other persons of the same name, see Thomas Paine (disambiguation). ...

. . . the world may know, that so far as we approve of monarchy, 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.

The concept "rule of law" is generally associated with several other concepts, such as:

• Nullum crimen, nulla poena sine praevia lege poenali — No ex post facto laws
• Presumption of innocence — All individuals are "presumed innocent until proven otherwise"
• Double jeopardy — Individuals may only be tried in a court of law once for every specific crime committed. Retrials may or may not be permitted on the grounds of new evidence. See also res judicata.
• Legal equality — All individuals are given the same rights without distinction to their social stature, religion, political opinions, etc. That is, as Montesquieu would have it, "law should be like death, which spares no one."
• Habeas corpus — in full habeas corpus ad subjiciendum, a Latin term meaning "you must have the body to be subjected (to examination)". A person who is arrested has the right to be told what crimes he or she is accused of, and to request that his or her custody be reviewed by judicial authority. Persons unlawfully imprisoned have to be freed.

The concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a "rule of law", a situation which many argue is applicable to several modern dictatorships. However, the "rule of law" or Rechtsstaat is considered a prerequisite for democracy, and as such, has served as a common basis for human rights discourse between countries such as the People's Republic of China and the West.^[2] Nullum crimen, nulla poena sine praevia lege poenali is a basic maxim in continental European legal thinking, authored by Paul Johann Anselm Ritter von Feuerbach as part of the Bavarian Code in 1813. ... An ex post facto law (from the Latin for from something done afterward) or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. ... Presumption of innocence is a legal right that the accused in criminal trials has in many modern nations. ... For other uses, see Double jeopardy (disambiguation). ... Res judicata (Latin for a matter [already] judged) is, in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal. ... This article needs to be cleaned up to conform to a higher standard of quality. ... “Montesquieu” redirects here. ... For other uses, see Habeas corpus (disambiguation). ... Human rights are rights which some hold to be inalienable and belonging to all humans. ... Forms of government Part of the Politics series Politics Portal This box:      A dictatorship is an autocratic form of government in which the government is ruled by a dictator. ... Rechtsstaat is a term borrowed from German jurisprudence which literally means a law-based state or constitutional state. It is a state in which the exercise of governmental power is constrained by the law, and is often tied to the Anglo-American concept of the rule of law. ... Human rights are rights which some hold to be inalienable and belonging to all humans. ...

The rule of law is an ancient ideal first posited by Plato as grounded in divine reason and so inherent in the natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it. The concept of impartial rule of law is found in the Chinese political philosophy of legalism, but the totalitarian nature of the regime that this produced had a profound effect on Chinese political thought which at least rhetorically emphasized personal moral relations over impersonal legal ones. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft. For other uses, see Plato (disambiguation). ... The natural order is the moral source from which natural law seeks to derive its authority. ... In Chinese history, Legalism (Chinese: ; Pinyin: ; Wade-Giles: Fa-chia; literally School of law) was one of the four main philosophic schools in the Spring and Autumn Period and the Warring States Period (Near the end of the Zhou dynasty from about the sixth century BC to about the third...

In the Anglo-American legal tradition rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the government. In the People's Republic of China the discourse around rule of law centers on the notion that laws ultimately enhance the power of the state and the nation, which is why the Chinese government adopts the principle of rule by law rather than rule of law.

Declaration of Delhi

Main article: Declaration of Delhi

In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. The New Delhi Congress or Declaration of Delhi was an international gathering of over 185 judges, lawyers, and law professors from 53 countries all over the world, united as the International Commission of Jurists that took place in New Delhi, India in 1959. ... Year 1959 (MCMLIX) was a common year starting on Thursday (link will display full calendar) of the Gregorian calendar. ... , This article is about the urban region that is the capital of India. ... The International Commission of Jurists (ICJ) is an international human rights non-government organisation. ...

Lord Bingham's sub-rules

In his speech on 16 November 2006 for the Sir David Williams Lecture in the Law Faculty of Cambridge University (accessible here), Lord Bingham of Cornhill postulated eight sub-rules of the rule of law. It should be noted that Lord Bingham takes a strongly substantive view on the rule of law, and that these sub-rules would be subject to fierce criticism by formalists. Thomas Henry Bingham, Baron Bingham of Cornhill, PC (born October 13, 1933), is one of the most senior judges in the United Kingdom. ...

• the law must be accessible and so far as possible intelligible, clear and predictable
• questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion
• the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation
• the law must afford adequate protection of fundamental human rights
• means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve
• ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
• adjudicative procedures provided by the state should be fair
• the state must comply with its obligations in international law, the law which, whether deriving from treaty or international custom and practice, governs the conduct of nations.

Authoritarianism

Rule of law is opposed by authoritarian and totalitarian states. The explicit policy of those governments, as evidenced in the Night and Fog decrees of Nazi Germany, is that the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations. Dictatorships generally establish secret police forces, which are not accountable to established laws, which can suppress threats to state authority. The term authoritarian is used to describe an organization or a state which enforces strong and sometimes oppressive measures against the population, generally without attempts at gaining the consent of the population. ... The concept of Totalitarianism is a typology or ideal-type used by some political scientists to encapsulate the characteristics of a number of twentieth century regimes that mobilized entire populations in support of the state or an ideology. ... Nacht und Nebel (Night and Fog ) was an incident and edict in Nazi Germany. ... Nazi Germany, or the Third Reich, commonly refers to Germany in the years 1933–1945, when it was under the firm control of the totalitarian and fascist ideology of the Nazi Party, with the Führer Adolf Hitler as dictator. ... This article is about secret police as organizations. ...

Critique

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Some would argue that the Rule of Law, i.e., the application of the body of law to the government, does not restrict the government in any way since any desired government privilege can be made by the government into a legal provision. The rule of law should be seen as a bureaucratic hoop for the government to jump through, rather than as a material restriction on government power. This of course is an inversion of the meaning of the Rule of Law in that it presupposes that the government has authority to break the laws that empowered it, or that government is not by consent of the governed. This view of Rule of Law occurs mostly where the principle of the separation of powers is not fully applied (i.e. where the legislative power and the executive power — the government — are held by the same body) as in the United Kingdom. Image File history File links Unbalanced_scales. ... Shortcut: WP:NPOVD Articles that have been linked to this page are the subject of an NPOV dispute (NPOV stands for Neutral Point Of View; see below). ...

Another critique is that the principle of legal equality can be easily subverted since many laws affect different people in different ways. A law giving the legislators a raise, for example, affects the legislators in a different way than it affects the rest of the public. But since such laws are not necessarily made in accordance with the rule of law, it remains unclear if this criticism is really aimed at the principle of the rule of law itself rather than to actual legislatures.

Marxist theory asserts the capitalist state is an instrument of oppression of the proletariat at the hands of the bourgeoisie, which set the laws to suit itself. Following this, some critical theorists analyze the "rule of law" as a judical fiction which aims at disguising the reality of violence and, in Marxist terminology, "class struggle". This theory presumes that the "bourgeoisie" holds the power to set the laws. Marxist theory is an academic specialization in Western academias. ... In economics, a capitalist is someone who owns capital, presumably within the economic system of capitalism. ... For other uses, see State (disambiguation). ... The proletariat (from Latin proles, offspring) is a term used to identify a lower social class; a member of such a class is proletarian. ... This article does not cite any references or sources. ... In the humanities and social sciences, critical theory has two quite different meanings with different origins and histories, one originating in social theory and the other in literary criticism. ... The South African Police Crush Another Demonstration by the Shack dwellers Movement Abahlali baseMjondolo, 28 September, 2007 Class struggle is the active expression of class conflict looked at from any kind of socialist perspective. ...

The Italian philosopher Giorgio Agamben argues that the state of exception is at the core of the concept of sovereignty, and not the "rule of law" as liberal thinkers have it. While the sovereign claims to follow the "rule of law", any protection the people have, however fundamental, can be jettisoned once the government finds it convenient to do so. Giorgio Agamben (born 1942) is an Italian philosopher who teaches at the Università IUAV di Venezia. ... State of Exception may mean: State of Exception (2005), a book written by Giorgio Agamben State of emergency, a government alert A concept in the legal theory of Carl Schmitt, similar to a state of emergency, but based in the sovereigns ability to transcend the rule of law for... “Sovereign” redirects here. ... Liberalism is an ideology, philosophical view, and political tradition which holds that liberty is the primary political value. ...

References and notes

Jeremy Waldron (born October 13, 1953) is a professor of law and philosophy at the New York University School of Law. ... In a paper delivered to the Aristotelian Society on 12 March 1956,[1] Walter Bryce Gallie (1912-1998) introduced the term essentially contested concept to facilitate an understanding of the different applications or interpretations of the sorts of abstract, qualitative, and evaluative notions[2] -- such as art and social justice...

See also

• Amnesty law
• Command responsibility
• Human rights
• Law
• Legal formalism
• Liberalism
• Judicial activism
• Juridical security
• Jurisprudence
• Mob rule
• Mundialization
• Property rights
• Rechtsstaat
• Rights of the accused
• Secret police
• State of emergency
• Unitary executive theory
• War on Terror
• Worldwide Governance Indicators

The term Amnesty law refers to any law that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for crimes committed. ... Peace Palace in The Hague Command responsibility, sometimes referred to as the Yamashita standard, or the Medina standard is the doctrine of hierarchical accountability in cases of war crimes. ... Human rights are rights which some hold to be inalienable and belonging to all humans. ... For other uses, see Law (disambiguation). ... Legal formalism is a Positivist view in jurisprudence and the philosophy of law. ... Liberalism is an ideology, philosophical view, and political tradition which holds that liberty is the primary political value. ... Judicial activism is a term used by political commentators to describe a tendency by judges to consider outcomes, attitudinal preferences, and other public policy issues in interpreting applicable existing law. ... For the jurisprudence of courts, see Case law. ... Ochlocracy (Greek: οχλοκρατια; Latin: ochlocratia) is government by mob or a mass of people, or the intimidation of constitutional authorities. ... Mundialization is all the ideas and actions expressing the solidarity of populations of the globe and aiming to establish institutions and supranational laws of a federative structure common to them, while respecting the diversity of cultures and peoples. ... This page deals with property as ownership rights. ... Rechtsstaat is a term borrowed from German jurisprudence which literally means a law-based state or constitutional state. It is a state in which the exercise of governmental power is constrained by the law, and is often tied to the Anglo-American concept of the rule of law. ... Headline text The rights of the accused is a class of rights in that apply to a person in the time period between when they are formally accused of a crime and when they are either convicted or acquitted. ... This article is about secret police as organizations. ... For other uses, see State of emergency (disambiguation). ... In American political and legal discourse, the unitary executive theory is a theory of Constitutional interpretation that is based on aspects of the separation of powers. ... This article is about U.S. actions, and those of other states, after September 11, 2001. ... 2005 World Map of the Corruption Index, which measures the degree to which corruption is perceived to exist among businesses, public officials and politicians. ...

External links

• International Network for the Promotion of Rule of Law International Network for the Promotion of Rule of Law, an association of rule of law professionals designed to foster discussion and cooperation on issues related to the establishment of the rule of law.
• What is the Rule of Law? University of Iowa Center for International Finance and Development
• An audio or written analysis of the Rule of Law by Lord Bingham of Cornhill (the senior Lord of Appeal in Ordinary and so effectively the chief justice of the UK supreme court) is available at the Centre for Public Law (Faculty, of Law, University of Cambridge).
• EQUITAS Rule of Law Commission (Canada District) Canada-based Rule of Law Think Tank providing legal resources helpful in aid for the better advancement of the Rule of Law.
• Worldwide Governance Indicators Worldwide ratings of country performances on Rule of Law and other governance dimensions from 1996 to present.
• Rule of law in the UK System How rule of law is to be understood in the UK system