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RULE

LAW?
Dr. Azhar Hassan Nadeem

What is the

OF

"We are free because we live under civil laws."


Charles de Secondat Montesquieu

The Rule of Law, in its most basic form, is the principle that no one is above the law.
Thomas Paine stated in his pamphlet Common Sense (1776):

"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."

In England, the issuing of the Magna Carta was a prime example of the "rule of law." The Great Charter forced King John to submit to the law and succeeded in putting limits on feudal fees and duties

Application of the rule of law


Principle:
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.

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).

Modern Anglo-American Concept


Hallmarks of adherence to the rule of law commonly include: Clear separation of powers Legal certainty Principle of legitimate expectation Equality of all before the law.

Three meanings of Rule of Law As an autonomous legal order, rule of law has at least three meanings. First, rule of law is a regulator of government power. Second, rule of law means equality before law. Third, rule of law means procedural and formal justice.

Functions of Rule of Law as a regulator

First, as a power regulator, rule of law has two functions: i) it limits government arbitrariness and power abuse
ii) it makes the government rational and its policies intelligent. more more

The opposite of rule of law is rule of person.

There are two kinds of rule of person:

i) Rule of the few persons," examples of which include tyranny and oligarchy.
ii) Rule of person is "rule of the many persons," an example of which is the Ancient Greek democracies.

In contrast, a key aspect of rule of law is "limitation;" Rule of law puts limits on the discretionary power of the government, including the power to change laws.

This is why the western tradition is Roman, not Greek.

juridical

Whenever there is discretion there is room for arbitrariness, and . . . in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects" (Dicey, 1982, p. 110).

The solution to this problem, say liberal democrats, is rule of law.

In the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government"

(Dicey, 1982, p. 120).

Second, if the government is to be restricted in its exercise of discretion, the government has to follow legal procedures that are pre-fixed and preannounced.

As F. A. Hayek puts it, rule of law : "that a government in all its actions is bound by rules fixed and announced beforehand
rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge"
(Hayek, 1994, p.80).

For example, in constitutional and criminal law, there is a prohibition on "ex post facto" laws, that is, no one should be punished for a crime not previously defined in law. In other words, the government cannot simply define a new crime and apply the new definition retrospectively.

The rationale for this principle is that, i) the government should not be allowed to abuse its power by punishing individuals for political or other conveniences; it would be grossly unjust and oppressive for the government to punish someone for behavior that was not known to be criminal at the time of commission;

ii)

iii)

to so punish individuals would result in so many uncertainties that it would create great inefficiencies.

For another example, The key reason why liberal democrats do not believe in the pure will theory of legality is that, without rule of law as a limit, popular will can easily be corrupted by passions, emotions and short-term irrationalities. As such, liberal democrats demand rule of law because it helps us to behave according to our long-term interest and reason.

Rule of law, according to Dicey, is equality before law. "[Not only that . . . no man is above the law, but (what is a different thing) that . . . every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. . . .

The third meaning of rule of law is formal or procedural justice. What is formal or procedural justice? Before we answer this question, we need to answer a more preliminary question:

What is formalism?

Max Weber categorizes legal systems into four kinds: formally irrational substantively irrational formally rational substantively rational Rationality refers to the generality and universality of law.

Formality refers to the characteristic that the criteria of lawmaking and lawfinding are intrinsic to the legal system itself; that is, all rules, procedures and decisions can be deduced from the legal system itself.

In contrast, a legal system that emphasizes substantive qualities of lawmaking and lawfinding uses factors outside law, such as ethical, emotional, religious or political factors, to evaluate cases.

To Weber, only a formally rational legal system can achieve "legal domination" (rule of law) through consistent application of general rules, because only a formally rational legal system can maintain a "consistent system of abstract rules" that is necessary for rule of law.

This kind of justice is called formal or procedural justice, which "connotes the method of achieving justice by consistently applying rules and procedures that shape the institutional order of a legal system

(Shen, 2000, p. 31).

Principles of Formal or Procedural Justice

First, the legal system must have a complete set of decisional and procedural rules that are fair.

Second, the fair rules of decision and procedure must also be pre-fixed and pre-announced.

Principles of Formal or Procedural Justice Third, these decisional and procedural rules must be transparently applied. Fourth, these decisional and procedural rules must be consistently applied. When these four conditions are satisfied, western judges and lawyers will say that they have achieved a certain kind of justice, which is called formal or procedural justice.

Note that this notion of justice is more concerned with process and procedure than with the end result. As Selznick puts it, "legality has to do mainly with how policies and rules are made and applied rather than with their contents"
(Selznick, 1969, as cited in Shen, 2000, p. 30).

In other words, as long as the process is fair, transparent and consistent, justice is obtained and legality is achieved.

In a system that sacrifices procedural justice for the sake of substantive justice, the danger of arbitrary government power and the threat to individual liberty will be too great. Eventually, that system will substantive injustice as well. lead to

In contrast, in a system that emphasizes procedural justice,


arbitrary government power will be checked, liberty will be protected, and substantive justice will be preserved in the long term

(if we believe that truth is best obtained through contest and debate between equals).

Without fair and just procedure, there is no guarantee that the end result will be just (that is, substantive justice cannot be guaranteed). As such, procedural justice is seen as a necessary condition for substantive justice.

Procedural justice is a condition for constraining government arbitrariness and protecting individual rights

Third, as Max Weber points out, procedural justice results in: consistency, predictability calculability that are desirable aspects of economic and social life.

Economic Growth and The Rule of Law


Per Capita Rs., 2005/6 projected
5,000 4,500 4,000 3,500 3,000 2,500 2,000 1,500 1,000 500 0 Subven/Other Legacy DivPool Shared OSR

Source: World Bank compilation of provincial budgets

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Na tio na l

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NW FP

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Economic growth, political modernization, the protection of human rights, and other worthy objectives are all believed to hinge, at least in part, on the rule of law.
Helen Yu and Alison Guernsey

Introduction to the Rule of Law


Politicians, lawyers, economists and policy-makers often use the term rule of law to characterize a certain type of legal-political regime. As the pace of globalization has increased in the past two decades, many developing countries have prioritized their policy agendas to promote the rule of law.

What is the Rule of Law?


It can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions

In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.

Elements of the Rule of Law

According to American legal scholar Lon Fuller identified eight elements of law which have been recognized as necessary for a society aspiring to institute the rule of law.

Elements of the Rule of Law


1. 2. 3. Laws must exist and those laws should be obeyed by all, including government officials. Laws must be published. Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed.

Elements of the Rule of Law


4. Laws should be written with reasonable clarity to avoid unfair enforcement.

5.
6. 7.

Law must avoid contradictions.


Law must not command the impossible. Law must stay constant through time to allow the formalization of rules; however, law also must allow for timely revision when the underlying social and political circumstances have changed. Official action should be consistent with the declared rule.

8.

Beyond Fullers Elements


The rule of law, however, extends beyond mere regulations and is also shaped by the so-called institutional constraints on government implied in Fullers elements. Institutional constraint is the existence of an independent judiciary; another is developing ways of promoting transparent governance.

Beyond Fullers Elements


Informal constraints, such as local culture or traditions that may encourage citizens to organize their behavior around the law, also help constrain the government, promote liberty and, therefore, define the rule of law. Although still seemingly vague, the rule of law may be most concretely defined as a theory of governance relying upon a series of legal and social constraints designed to encourage order and to prevent arbitrary and unreasonable exercise of government power.

The Rule of Law & Development


Modern economic development often comes with the introduction of a market economy is organized upon a rational, law-bound state. The market economy brings buyers and sellers to the market for complex transactions and the international sale of goods. In the age of globalization, players in the market economy can come from many different parts of the world.

Law is important to the market economy because it is the common basis on which parties can make agreements; it provides parties with confidence that disputes can be resolved efficiently and fairly. For this reason, the predictability and order that the rule of law promotes in substantive laws is viewed as the stabilizing force behind much economic development.

The rule of law helps set the rules of the game in critical areas such as investments, property, and contracts.
The rule of law also serves as an important assurance of social rights and government accountability.

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