RULE OF LAW; MEANING AND APPLICATION
Rule of law is the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a non-arbitrary form of government, and more generally prevents the arbitrary use of power.
The term rule of law is also referred to as a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly enacted, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires as well measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency
Ideas about the rule of law have been central to political and legal thought since at least the 4th century BCE, when Aristotle distinguished “the rule of law” from “that of any individual.” In the 18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted the legitimate authority of monarchs with the caprice of despots. It has since profoundly influenced Western liberal thought.
In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one—including the most highly placed government official—is above the law.
The legal constraint on rulers means that the government is subject to existing laws as much as its citizens are. Thus, a closely related notion is the idea of equality before the law, which holds that no “legal” person shall enjoy privileges that are not extended to all and that no person shall be immune from legal sanctions. In addition, the application and adjudication of legal rules by various governing officials are to be impartial and consistent across equivalent cases, made blindly without taking into consideration the class, status, or relative power among disputants. In order for those ideas to have any real purchase, moreover, there should be in place some legal apparatus for compelling officials to submit to the law.
Not only does the rule of law entail such basic requirements about how the law should be enacted in society, it also implies certain qualities about the characteristics and content of the laws themselves. In particular, laws should be open and clear, general in form, universal in application, and knowable to all. Moreover, legal requirements must be such that people are able to be guided by them; they must not place undue cognitive or behavioral demands on people to follow. Thus, the law should be relatively stable and comprise determinate requirements that people can consult before acting, and legal obligations should not be retroactively established. Furthermore, the law should remain internally consistent and, failing that, should provide for legal ways to resolve contradictions that can be expected to arise.
Challenges to the rule of law
In itself, the notion of the rule of law is not a faithful description of any state of affairs but a complex ideal that is even more complex to realize. Thus, there is reason to be skeptical about whether societies necessarily benefit from all that might be invoked under the term. The independence of the judiciary, for instance, is clearly a problem if the independence is misused to foster the sectoral privileges of judicial personnel or to allow unchallenged interpretations of the law.
In short, too much emphasis on procedures for preventing arbitrariness can lead to subverting the doing of justice according to what might otherwise find support in the rule of law, and the legal structures then become themselves a form of arbitrariness that is no more legitimate. On the other hand, those who defend the negative value of the rule of law object to more substantive understandings of the ideal on the grounds that morally ambitious aspirations about the rule of law threaten to purge the concept of its specificity and usefulness. They argue that to open the concept to a whole host of extralegal considerations about substantive justice and wider societal goals is to conflate ideas about “the rule of law” with notions about “the rule of good law,” such that any distinction between the two is reduced to nothing. As a consequence, no discussion of the rule of law can be complete without some philosophical reflection on law, including on its purpose and meaning.
In conclusion, the rule of law is the most important feature of good governance in the polity. It preserves the jurisdiction of the courts and promotes checks and balances of governmental powers in a democratic system of government. Although in practice, there is no ideal promotion of the rule of law.
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