Rule of Law

The rule of law characterizes polities where coercive state action is efficiently exercised in accordance with generally applicable authoritative rules, adopted according to an agreed-upon and public procedure, and not contrary to certain fundamental natural rights. The concept is intrinsic to the Western idea of a legitimate legal system.

The most famous exposition of the rule of law was made by British constitutionalist Albert Venn Dicey (1835–1922) in his Introduction to the Study of the Law of the Constitution in 1895. Dicey saw the rule of law as embodying three “kindred conceptions”: (1) that no one is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land; (2) that the same general law applies to the rulers as to the ruled; and (3) that individual rights are enforced, not simply proclaimed (Dicey [1895] 1982, pp. 107–122). John Adams (1735–1826), in Article XXX of the 1780 Massachusetts Constitution, added a fourth, quintessentially American contribution to the rule of law: separation of powers. “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.”

Good organization has been an implicit part of the rule of law since King John (c. 1167–1216) of England was forced to approve the Magna Carta in 1215: “To no one will We sell, to no one will We deny or delay, right or justice” (Magna Carta, c1. 40).

Legalism (respect by the state for, and enforcement of, its laws) is also an important part of the rule of law. This legalism arguably characterized Soviet and, to a large extent, even Nazi rule, however. Legalism is necessary but not sufficient: fundamental individual rights, arguably inherent in Dicey’s third kindred conception, are necessary too.

In sum, the rule of law seems to comprise four requirements (five if separation of powers is added):

1. Government is bound by the law.
2. The law is discernible by citizens.
3. Application of the law is well-organized.
4. Ordered liberty is largely maintained; that is, citizens are reasonably secure in their persons and property.

This rule of law can, within these constraints, exist in different legal systems. Republics and parliamentary democracies, civil and common law systems, are compatible with it. Differing tax rates and differing notions of fundamental rights are also compatible with the rule of law. On the other hand, rule-of-law procedural rights, such as the presumption of innocence (citizens are to be treated as innocent until they have been proven guilty), nonretroactivity (no one can be held accountable for violating a law before it was in effect), and habeas corpus (detained persons have the right to have their custody justified both to them and to an independent judicial authority), are intrinsic to the rule of law. Procedure is Page 293  |  Top of Articlerelated to substance here: only if a legal system were substantially and severely unjust might, for example, retroactivity be authorized to eliminate the injustice.

The concept is elusive and fluid, but utterly meaningful. British philosopher Michael Oakeshott (1901–1990) put it best in his essay “The Rule of Law”: “The rule of law bakes no bread, it is unable to distribute loaves or fishes (it has none), and it cannot protect itself against external assault, but it remains the most civilized and least burdensome conception of a state yet to be devised” (1983, p. 164).