Rule of law
The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders.[2][3] It is sometimes stated simply as "no one is above the law".[4] The term rule of law is closely related to constitutionalism as well as Rechtsstaat. It refers to a political situation, not to any specific legal rule.[5][6][7] The rule of law is defined in the Encyclopædia Britannica as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power."[8]
"Rule of Law" redirects here. For other uses, see Rule of Law (disambiguation).
Use of the phrase can be traced to 16th-century Britain. In the following century, Scottish theologian Samuel Rutherford employed it in arguing against the divine right of kings.[9] John Locke wrote that freedom in society means being subject only to laws written by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions on his liberty. "The rule of law" was further popularized in the 19th century by British jurist A. V. Dicey. However, the principle, if not the phrase itself, was recognized by ancient thinkers. Aristotle wrote: "It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws."[10]
The rule of law implies that every person is subject to the law, including persons who are lawmakers, law enforcement officials, and judges.[11]
History[edit]
Early history (to 15th century)[edit]
Several scholars have traced the concept of the rule of law back to 4th-century BC Athens, seeing it either as the dominant value of the Athenian democracy,[12] or as one held in conjunction with the concept of popular sovereignty.[13] However, these arguments have been challenged and the present consensus is that upholding an abstract concept of the rule of law was not "the predominant consideration" of the Athenian legal system.[14]
Alfred the Great, Anglo-Saxon king in the 9th century, reformed the law of his kingdom and assembled a law code (the Doom Book) which he grounded on biblical commandments. He held that the same law had to be applied to all persons, whether rich or poor, friends or enemies. This was likely inspired by Leviticus 19:15: "You shall do no iniquity in judgment. You shall not favor the wretched and you shall not defer to the rich. In righteousness you are to judge your fellow."[15]
In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates back under the rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes.[16][17] The influence of Magna Carta ebbs and wanes across centuries. The weakening of royal power it demonstrated was based more upon the instability presented by contested claims than thoughtful adherence to constitutional principles. Until 1534, the Church excommunicated people for violations, but after a time Magna Carta was simply replaced by other statutes considered binding upon the king to act according to "process of the law". Magna Carta's influence is considered greatly diminished by the reign of Henry VI, after the Wars of the Roses.[18] The ideas contained in Magna Carta are widely considered to have influenced the United States Constitution.
In 1481, during the reign of Ferdinand II of Aragon, the Constitució de l'Observança was approved by the General Court of Catalonia, establishing the submission of royal power (included its officers) to the laws of the Principality of Catalonia.[19]
The first known use of this English phrase occurred around 1500.[20] Another early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons:
In relation to economics[edit]
One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law's impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without an answer to the question: does the rule of law matter to economic development or not?[110] Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors.
The standards of constitutional economics can be used during annual budget process, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor.[111]
The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. To date, the term "rule of law" has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy.[112]
The economist F. A. Hayek analyzed how the rule of law might be beneficial to the free market. Hayek proposed that under the rule of law, individuals would be able to make wise investments and future plans with some confidence in a successful return on investment when he stated: "under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts."[113]
Studies have shown that weak rule of law (for example, discretionary regulatory enforcement) discourages investment. Economists have found, for example, that a rise in discretionary regulatory enforcement caused US firms to abandon international investments.[114]
In relation to culture[edit]
The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments or Roerich Pact is an inter-American treaty. The most important idea of the Roerich Pact is the legal recognition that the defense of cultural objects is more important than the use or destruction of that culture for military purposes, and the protection of culture always has precedence over any military necessity.[115]
The Roerich Pact signed on 15 April 1935, by the representatives of 21 American states in the Oval Office of the White House (Washington, DC). It was the first international treaty signed in the Oval Office.[116]
The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is the first international treaty that focuses on the protection of cultural property in armed conflict. It was signed at The Hague, Netherlands on 14 May 1954 and entered into force on 7 August 1956. As of June 2017, it has been ratified by 128 states.[117]
The rule of law can be hampered when there is a disconnect between legal and popular consensus. An example is intellectual property. Under the auspices of the World Intellectual Property Organization, nominally strong copyright laws have been implemented throughout most of the world; but because the attitude of much of the population does not conform to these laws, a rebellion against ownership rights has manifested in rampant piracy, including an increase in peer-to-peer file sharing.[118] Similarly, in Russia, tax evasion is common and a person who admits he does not pay taxes is not judged or criticized by his colleagues and friends, because the tax system is viewed as unreasonable.[119] Bribery likewise has different normative implications across cultures.[120]
Education has an important role in promoting the rule of law (RoL) and a culture of lawfulness. In essence, it provides an important protective function by strengthening learners' abilities to face and overcome difficult life situations. Young people can be important contributors to a culture of lawfulness, and governments can provide educational support that nurtures positive values and attitudes in future generations.[121]
Through education, learners are expected to acquire and develop the cognitive, socio-emotional and behavioural experiences and skills they need to develop into constructive and responsible contributors to society. Education also plays a key role in transmitting and sustaining socio-cultural norms and ensuring their continued evolution.[122] Through formal education, children and youth are socialized to adopt certain values, behaviours, attitudes and roles that form their personal and social identity and guide them in their daily choices.[121]
As they develop, children and youth also develop the capacity to reflect critically on norms, and to shape new norms that reflect contemporary conditions. As such, education for justice promotes and upholds the principle of the RoL by:[121]
Global Citizenship Education (GCE) is built on a lifelong learning perspective. It is not only for children and youth but also for adults. It can be delivered in formal, non-formal and informal settings. For this reason, GCE is part and parcel of the Sustainable Development Goal 4 on Education (SDG4, Target 4.7). A competency framework based on a vision of learning covers three domains to create a well-rounded learning experience: Cognitive, Socio-Emotional and Behavioural.[121]
Educational policies and programmes can support the personal and societal transformations that are needed to promote and uphold the RoL by:
Sources[edit]
This article incorporates text from a free content work. Licensed under CC BY-SA (license statement/permission). Text taken from Strengthening the rule of law through education: A guide for policymakers, 63, UNESCO.