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What is the “rule of law”?
The rule of law is the orderly passage and execution of laws by a governing body. In the United States, a representative democracy, laws exist to serve or represent the interests of the greatest number of people. Enforcement of the law is done to both maintain order within the community and to create a system in which individuals can be productive. An important aspect of the rule of law is that it applies uniformly to all individuals. That is, the law is not applied selectively to some individuals and not others. If laws are applied generally to all individuals, there is little reason or motivation for the use of law to oppress or gain an advantage over others. A functioning rule of law system is essential for economic productivity. Again, the just and uniform application of the law across the population creates trust and confidence. Individuals can rest assured that their rights will be protected through the elimination of any unfair advantages or disadvantages to individuals under the law.
Discussion: Imagine a society where the law applies differently to different individuals because of status, wealth, demographic characteristics, etc. For example, Tom could enter into an agreement with Anna and blatantly breach that agreement with no repercussions or method for Anna to enforce her contractual rights. In contrast, if Anna were to breach the agreement, Tom could seek redress and Anna could suffer negative repercussions under the law. This is a common occurrence in countries with weak rule-of-law systems. In such countries, individuals in power manipulate the law to the advantage of certain individuals or classes of people over others. In the business context, such occurrences result in a lack of confidence by those disadvantaged individuals in taking part in commercial activity. Looking back on the history of the United States, can you think of examples of movements to strengthen the rule of law? Hint: Look up the Civil Rights and Women’s Suffrage Movements.
- The rule of law is intended to apply to all citizens equally. It should not discriminate on the basis of gender, race, color or social status. In the past, there has been discrimination against certain groups of people in the observation of human rights. Women’s suffrage is a perfect example, a time when women were not allowed to vote or hold a position in a public office in the U.S.A. It was only until the passing of the 19th amendment in 1920 that women were handed this right. The history of Women’s suffrage in the U.S.A was long and slow, having started with the abolitionists in the antislavery movement in the 1840s and 1850s. This movement encouraged citizens to rally and defend their rights and end discrimination. It is a movement that not only called for the abolition of slavery but also called for all people to be treated equally regardless of their gender or race.
Practice Question: Jane is a diplomat. She is participating in a presentation to a judicial figure in a rebuilding Middle-Eastern country. When explaining the role of each branch of government in the United States, the judicial official asks the following questions. “The Supreme Court may do away with a law that it believes treats certain people unfairly. What if the President wants to continue to enforce that law? How can a court with nine members order the commander of the military to do something?” Can you respond to these questions in a way that summarizes the US system’s dependence upon the rule of law?
- Jane can feel comfortable answering this question with an explanation of the strength of the rule of law within the US legal system. The Executive Branch must carry out the law as passed by Congress, with the limitations placed upon it by court interpretation. The Supreme Court has ruled that the law is unconstitutional as passed. Any actions attempting to enforce such a law would be in direct opposition to the established rule of law. While Checks and Balances, namely the ability of Congress to impeach a sitting president, may enforce the rule of law; it is the existence of the rule of law and its strength in the US legal system that drives the President to comply with a court decision regarding the constitutionality of a law. Of course, there have been instances in the history of the United States where the acting President failed to adhere to Supreme Court interpretation of a law’s constitutionality.
Academic Citations for What is rule of law
Wangmo, Kesang, Rule of Law – A Comparative Analysis of Rule of Law in Australia and Bhutan (June 1, 2018). Bhutan Law Network / JSW Law Research Paper Series No. 18-6. Available at SSRN: https://ssrn.com/abstract=3271777 or http://dx.doi.org/10.2139/ssrn.3271777. This articles provides a comparative analysis of the topic of Rule of Law in two jurisdictions.
Leal-Arcas, Rafael, Essential Elements of the Rule of Law Concept in the EU (August 20, 2014). Queen Mary School of Law Legal Studies Research Paper No. 180/2014. Available at SSRN: https://ssrn.com/abstract=2483749 or http://dx.doi.org/10.2139/ssrn.2483749. This article provides a non-exhaustive list of concepts applicable to rule of law within the UK.
Krygier, Martin Evald John, The Rule of Law: Legality, Teleology, Sociology (October 31, 2008). RE-LOCATING THE RULE OF LAW, Gianluigi Palombella & Neil Walker, eds., Hart Publishers, Oxford, 2008; UNSW Law Research Paper No. 2007-65. Available at SSRN: https://ssrn.com/abstract=1218982. This article provides a theoretical approach to addressing the issue of what is rule of law.
Rosenfeld, Michel, The Rule of Law and the Legitimacy of Constitutional Democracy (March 2001). Cardozo Law School, Public Law Research Paper No. 36. Available at SSRN: https://ssrn.com/abstract=262350 or http://dx.doi.org/10.2139/ssrn.262350, This paper examines the rule of law in the context of a constitutional democracy.
Shinar, Adam, One Rule to Rule Them All? Rules of Law Against the Rule of Law (June 5, 2017). 5 The Theory and Practice of Legislation 149 (2017). Available at SSRN: https://ssrn.com/abstract=2980757. This article addresses the inherent issues within the concept of Rule of Law that conflict or can be inconsistent with principles of rule of law.
Calabresi, Steven G. and Lawson, Gary, The Rule of Law as a Law of Law (March 20, 2014). Notre Dame Law Review, Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 14-14; Northwestern Public Law Research Paper No. 14-18. Available at SSRN: https://ssrn.com/abstract=2412025. This article provides an analysis and critique of Justic Scalia’s 1989 article, “The Rule of Law as a Law of Rules.” It assets that the law is what it is, whether or not it conforms to some abstract jurisprudential norm. The rule of law is not a law of rules. It is a law of law.
Barber, Nicholas W., The Rechtsstaat and the Rule of Law (2003). The University of Toronto Law Journal, Vol. 53, No. 4, Autumn 2003, pp. 443-454. Available at SSRN: https://ssrn.com/abstract=2532858. The paper compares the German concept of the Rechtsstaat with the British concept of the rule of law.
Sellers, Mortimer Newlin Stead, What is the Rule of Law and Why is It so Important? (June 2, 2014). Silkenat, Barenboim and Hickey, eds., “The Legal Doctrines of the Rule of Law and the Legal State” (Springer, 2014 Forthcoming); University of Baltimore School of Law Legal Studies Research Paper No. 2015-15. Available at SSRN: https://ssrn.com/abstract=2445057.This article examines the Rule of Law in the context of good and bad governance.