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Mosaic representing both the judicial and legislative aspects of law. The woman on the throne holds a sword to chastise the guilty and a palm branch to reward the meritorious. Glory surrounds her head, and the aegis of Minerva signifies the armor of righteousness and wisdom.[1]
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The rule of law generally refers to the "authority and influence of law in society," especially as a constraint upon behavior, including behavior of government officials.[2] This phrase is also sometimes used in other senses.[3]

In its general sense, the phrase can be traced back to the 16th century, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".[4] Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.

Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion"[5] giving rise to a "rampant divergence of understandings ... everyone is for it but have contrasting convictions about what it is."[6]

At least two principal conceptions of the rule of law can be identified: a formalist or "thin" definition, and a substantive or "thick" definition. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.[7]

History

Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey,[8][9] development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India and Rome.[10]

Antiquity

In Western philosophy, the ancient Greeks initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.[11] Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state."[12] More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.[11] In other words, Aristotle advocated the rule of law:

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.[4]

According to the Roman statesman Cicero, "We are all servants of the laws in order that we may be free."[13] During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.[8]

In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law.[14] In contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.[15]

In India (Bharat), the rule of law was based on the moral responsibility of both citizens and rulers. Two main systems dictated the laws in ancient Indian society: Dharma (every person must fulfil their responsibilities to the best of their abilities), and manusmritis, texts written by various scholars that outlined laws such as inheritance laws, marriage laws, laws regarding criminal activities, etc. Manusmritis were also edited and new laws were added to accommodate changing situations, a process that still takes place in modern lawmaking. The rulers appointed a court of ministers that advised them on how to rule their kingdoms from the political and moral viewpoint, and rulers were not above the law. Judicial systems usually consisted of Panchayats (mini-courts with five people educated in manusmritis acting as judges).[16]

Middle Ages

In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official could claim to be above the law, not even the caliph.[17] However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.[citation needed]

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 the Magna Carta in return for exacting taxes.[18][19] This foundation for constitution was carried into the Constitution of the United States.

Modern times

The first known use of this English phrase occurred around 1500 A.D.[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:

Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government....[21]

In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions (according to his own report) "that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.)."

Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title is Latin for "the law is king" and reverses the traditional rex lex ("the king is the law"). John Locke also discussed this issue in his Second Treatise of Government (1690). The principle was also discussed by Montesquieu in The Spirit of the Laws (1748).[22] The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755).[23]

In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. 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."[24] In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."[25]

Categorization of interpretations

Different people have different interpretations about exactly what "rule of law" means. According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings.[26] Among modern legal theorists, most views on this subject fall into three general categories: the formal (or "thin") approach, the substantive (or "thick") approach, and the functional approach.[27][28]

The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law.[27] This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights.

The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.

The functional interpretation of the term "rule of law", consistent with the traditional English meaning, contrasts the "rule of law" with the "rule of man."[28] According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of law".[28] Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law.[29] The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.[28]

The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion."[30]

Status in various jurisdictions

See also: Rule of law in the United Kingdom

The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country.[31] Research, like the Worldwide Governance Indicators, defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence."[31] Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map below.[32] A government based on the rule of law can be called a "nomocracy", from the Greek nomos (law) and kratos (power or rule).[33]

United States

2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents have confidence in and abide by the rules of society. Colors range from dark green (90th-100th percentile) to light green (75th-90th percentile), yellow (50th-75th percentile), orange (25th-50th percentile), pink (10th-25th percentile) and red (0th-10th percentile). Percentile rank indicates the percentage of countries worldwide that rate below the selected country.

All government officers of the United States, including the President, the Justices of the Supreme Court, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader.[34] At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion,[35] and the executive branch also has various discretionary powers including prosecutorial discretion.

Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law," and if so, which one. For example, Law Professor John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria," and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria.[36] Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.[37]

Some modern scholars contend that the general principles embodied by the phrase Rule of Law have undergone a radical change in modern times, particularly the last century. In the twelfth annual Clifford Symposium on Tort Law and Social Policy, Brian Z. Tamanha mentions this trend in the article HOW AN INSTRUMENTAL VIEW OF LAW CORRODES THE RULE OF LAW: "The rule of law is a centuries-old ideal, but the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries. That view of law was famously advocated by Jeremy Bentham and Rudolph von Jhering, and in the United States by Oliver Wendell Holmes, Roscoe Pound, and the Legal Realists. These theorists argued that law should be declared at our will and shaped to achieve our collective social purposes. Prior to their arguments, law – the common law in particular – was characterized as the immanent order of natural principles or of the customs and moral norms of the society or community. Law is not an empty vessel to be filled in by our leave; rather, law is predetermined in some sense, consistent with what is necessary and right."

James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course."[38] Chief Justice John Marshall (joined by Justice Joseph Story) took a similar position in 1827: "When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law."[39]

Asia

East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism, which advocated strict adherence to law. The influence of one school of thought over the other has varied throughout the centuries. One study indicates that throughout East Asia, only South Korea, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state.[40] According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent:

Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party ... That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade?[41]

In countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights.[42] The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.

In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review.[43] According to Indian journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges."[44]

Japan had centuries of tradition prior to World War II, during which there were laws, but they did not provide a central organizing principle for society, and they did not constrain the powers of government (Boadi, 2001). As the 21st century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.[45]

Organizations and scholarly works

Many organizations and scholars have advocated the rule of law and have taken positions regarding the interpretation of that concept they prefer.

International Commission of Jurists

In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review.[46]

United Nations

The Secretary-General of the United Nations defines the rule of law as:[47]

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 promulgated, 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.

The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions.[48] The Security Council has held a number of thematic debates on the rule of law,[49] and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security,[50] children in armed conflict,[51] and the protection of civilians in armed conflict.[52] The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda.[53] The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights education.[54]

International Bar Association

The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:[55]

An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.

World Justice Project

As used by the World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld:[56]

1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property;
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law —such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice.[57]

Albert Dicey

British jurist A. V. Dicey popularized the phrase "rule of law" in 1885.[8][58] Dicey emphasized three aspects of the rule of law :[59]

  1. No one can be punished or made to suffer except for a breach of law proved in an ordinary court.
  2. No one is above the law and everyone is equal before the law regardless of social, economic, or political status.
  3. The rule of law includes the results of judicial decisions determining the rights of private persons.

Joseph Raz

In 1977, the influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies.[60] Raz's principles encompass the requirements of guiding the individual's behaviour and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz's principles are as follows:

  • That laws should be prospective rather than retroactive.
  • Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
  • There should be clear rules and procedures for making laws.
  • The independence of the judiciary has to be guaranteed.
  • The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
  • The courts should have the power of judicial review over the way in which the other principles are implemented.
  • The courts should be accessible; no man may be denied justice.
  • The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally "is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man".[60]

In relation to economics

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 for economic development or not?.[61] 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.[62]

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.[63]

The modern 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."[64] Hayek defined the Rule of Law as the opposite of arbitrary government: "The distinction we have drawn before between the creation of a permanent framework of laws within which the productive activity is guided by individual decisions and the direction of economic activity by a central authority is thus really a particular case of the more general distinction between the Rule of Law and arbitrary government. Under the first the government confines itself to fixing rules determining the conditions under which the available resources may be used, leaving to the individuals the decision for what ends they are to be used. Under the second the government directs the use of the means of production to particular ends. The first type of rules can be made in advance, in the shape of formal rules which do not aim at the wants and needs of particular people. They are intended to be merely instrumental in the pursuit of people's various individual ends. And they are, or ought to be, intended for such long periods that it is impossible to know whether they will assist particular people more than others. They could almost be described as a kind of instrument of production, helping people to predict the behavior of those with whom they must collaborate, rather than as efforts toward the satisfaction of particular needs."[65]

Amity Shlaes, author of The Forgotten man: A New History of the Great Depression discusses the impact of the Rule of Law or its absence on economics in her article "The Rules of the Game and Economic Recovery".

See also

Notes

  1. ^ Cole, John et al. The Library of Congress, page 113 (W. W. Norton & Company 1997).
  2. ^ Oxford English Dictionary, "Rule of Law, n.", accessed April 27, 2013: "The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes."
  3. ^ Garner, Bryan A. (Editor in Chief). Black's Law Dictionary, 9th Edition, p. 1448. (Thomson Reuters, 2009). ISBN 978-0-314-26578-4. The lead definition given by Black's is this: "A substantive legal principle", and the second definition is the "supremacy of regular as opposed to arbitrary power". Black's provides a total of five definitions of "rule of law".
  4. ^ a b Aristotle,Politics 3.16
  5. ^ Tamanaha, Brian Z. (2004). On the Rule of Law. Cambridge University Press. p. 9. {{cite book}}: Invalid |ref=harv (help)
  6. ^ Tamanaha 2004, p. 9.
  7. ^ Craig, Paul P. (1997). "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework". Public Law: 467.
  8. ^ a b c Wormuth, Francis. The Origins of Modern Constitutionalism, page 28 (1949).
  9. ^ Bingham, Thomas. The Rule of Law, page 3 (Penguin 2010).
  10. ^ Black, Anthony. A World History of Ancient Political Thought (Oxford University Press 2009). ISBN 0-19-928169-6
  11. ^ a b David Clarke, "The many meanings of the rule of law" in Kanishka Jayasuriya, ed., Law, Capitalism and Power in Asia (New York: Routledge, 1998).
  12. ^ Cooper, John et al. Complete Works By Plato, page 1402 (Hackett Publishing, 1997).
  13. ^ In Latin, Omnes legum servi sumus ut liberi esse possumus.
  14. ^ Xiangming, Zhang. On Two Ancient Chinese Administrative Ideas: Rule of Virtue and Rule by Law, The Culture Mandala: Bulletin of the Centre for East-West Cultural and Economic Studies (2002): “Although Han Fei recommended that the government should rule by law, which seems impartial, he advocated that the law be enacted by the lords solely. The lords place themselves above the law. The law is thereby a monarchical means to control the people, not the people's means to restrain the lords. The lords are by no means on an equal footing with the people. Hence we cannot mention the rule by law proposed by Han Fei in the same breath as democracy and the rule of law advocated today.”
    Bevir, Mark. The Encyclopedia of Political Theory, page 162.
    Munro, Donald. The Concept of Man in Early China. Page 4.
    Guo, Xuezhi. The Ideal Chinese Political Leader: A Historical and Cultural Perspective. Page 152.
  15. ^ Peerenboom, Randall (1993). Law and morality in ancient China: the silk manuscripts of Huang-Lao. SUNY Press. p. 171. ISBN 9780791412374.
  16. ^ http://www.bhu.ac.in/mmak/resent_article/JusticeKatjusLec.pdf
  17. ^ Christopher Weeramantry (1997). Justice without Frontiers, page 132 Martinus Nijhoff Publishers.
  18. ^ Magna Carta (1215)translation, British Library
  19. ^ Magna Carta (1297) U.S. National Archives.
  20. ^ Oxford English Dictionary (OED), "Rule of Law, n.", accessed April 27, 2013. According to the OED, this sentence from about 1500 A.D. was written by John Blount: "Lawes And constitutcions be ordeyned be cause the noysome Appetit of man maye be kepte vnder the Rewle of lawe by the wiche mankinde ys dewly enformed to lyue honestly." And this sentence from 1559 A.D. is attributed to William Bavand: "A Magistrate should..kepe rekenyng of all mennes behauiours, and to be carefull, least thei despisyng the rule of lawe, growe to a wilfulnes."
  21. ^ Hallam, Henry. The Constitutional History of England, Volume 1, page 441 (1827).
  22. ^ Tamanaha, Brian. On the Rule of Law, page 47 (Cambridge University Press, 2004).
  23. ^ Peacock, Anthony Arthur, Freedom and the rule of law, p. 24. 2010.
  24. ^ Lieberman, Jethro. A Practical Companion to the Constitution, page 436 (University of California Press 2005).
  25. ^ Massachusetts Constitution, Part The First, art. XXX (1780).
  26. ^ Shklar, Judith and Hoffman, Stanley. Political Thought and Political Thinkers, page 21 (University of Chicago Press, 1998).
  27. ^ a b Tamanaha, Brian. “The Rule of Law for Everyone?”, Current Legal Problems, volume 55, via SSRN (2002):

    Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. Still, there are other views as well. Some believe that democracy is part of the rule of law.
  28. ^ a b c d Stephenson, Matthew. "Rule of Law as a Goal of Development Policy", World Bank Research (2008).
  29. ^ Heidi M. Hurd (Aug., 1992). "Justifiably Punishing the Justified". Michigan Law Review. 90 (8). The Michigan Law Review Association: 2203–2324. doi:10.2307/1289573. JSTOR 1289573. {{cite journal}}: Check date values in: |date= (help)
  30. ^ Tamanaha, Brian. On the Rule of Law, page 3 (Cambridge University Press, 2004).
  31. ^ a b Kaufman, Daniel et al. "Governance Matters VI: Governance Indicators for 1996-2006, World Bank Policy Research Working Paper No. 4280" (July 2007).
  32. ^ "Governance Matters 2008", World Bank.
  33. ^ McIntyre, Kenneth B. (2004). The Limits of Political Theory: Oakeshott's Philosophy of Civil Association (British Idealist Studies ed.). Exeter, UK: Imprint Academic. p. 134. ISBN 978-1845400101. OCLC 55908410.
  34. ^ Vile, John. A Companion to the United States Constitution and its Amendments, page 80 (Greenwood Publishing Group, 2006).
  35. ^ Osborn v. Bank of the United States, 22 U. S. 738 (1824): "When [courts] are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it."
  36. ^ Harrison, John. "Substantive Due Process and the Constitutional Text," Virginia Law Review, Volume 83, page 493 (1997).
  37. ^ Gedicks, Frederick. "An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment", Emory Law Journal, Vol. 58, pages 585-673 (2009). See also Edlin, Douglas "Judicial Review without a Constitution", Polity, Volume 38, pages 345-368 (2006).
  38. ^ Snowiss, Sylvia. Judicial Review and the Law of the Constitution, pages 41–42 (Yale University Press 1990).
  39. ^ Ogden v. Saunders, 25 U.S. 213, 347 (1827). This was Marshall's only dissent in a constitutional case. The individualist anarchist Lysander Spooner later denounced Marshall for this part of his Ogden dissent. See Spooner, Lysander (2008). Let's Abolish Government. Ludwig Von Mises Institute. p. 87. These same issues were also discussed in an earlier U.S. Supreme Court case, Calder v. Bull, 3 U.S. 386 (1798), with Justices James Iredell and Samuel Chase taking opposite positions. See Presser, Stephen. "Symposium: Samuel Chase: In Defense of the Rule of Law and Against the Jeffersonians", Vanderbilt Law Review, Volume 62, page 349 (March 2009).
  40. ^ Chu, Yun-Han et al. How East Asians View Democracy, pages 31-32.
  41. ^ Thi, Awzar. "Asia needs a new rule-of-law debate", United Press International, UPIAsia.com (2008-08-14).
  42. ^ Peerenboom, Randall in Asian Discourses of Rule of Law, page 39 (Routledge 2004).
  43. ^ Baxi, Upendra in Asian Discourses of Rule of Law, pages 336-337 (Routledge 2004).
  44. ^ Robinson, Simon. "For Activist Judges, Try India", Time Magazine (2006-11-08).
  45. ^ Green, Carl. "Japan: 'The Rule of Law Without Lawyers' Reconsidered", Speech to the Asia Society (2001-03-14).
  46. ^ Goldsworthy, Jeffrey. “Legislative Sovereignty and the Rule of Law" in Tom Campbell, Keith D. Ewing and Adam Tomkins (eds), Sceptical Essays on Human Rights (Oxford: Oxford University Press, 2001), p 69.
  47. ^ What is the Rule of Law?, United Nations Rule of Law.
  48. ^ See United Nations General Assembly Resolutions A/RES/61/39, A/RES/62/70, A/RES/63/128.
  49. ^ See United Nations Security Council debates S/PRST/2003/15, S/PRST/2004/2, S/PRST/2004/32, S/PRST/2005/30, S/PRST/2006/28.
  50. ^ See United Nations Security Council Resolutions 1325 and 1820.
  51. ^ E.g. see United Nations Security Council Resolution 1612.
  52. ^ E.g. see United Nations Security Council Resolution 1674.
  53. ^ United Nations and the Rule of Law.
  54. ^ Vienna Declaration and Programme of Action Part II, paragraph 79
  55. ^ Resolution of the Council of the International Bar Association of October 8, 2009, on the Commentary on Rule of Law Resolution (2005).
  56. ^ About the WJP.
  57. ^ Agrast, M., Botero, J., Ponce, A., WJP Rule of Law Index 2011. Washington, D.C.: The World Justice Project. (2011).
  58. ^ Dicey, Albert. An Introduction to the Study of the Law of the Constitution (1885).
  59. ^ Palekar, S. Comparative Politics and Government 64-65 (PHI Learning 2009).
  60. ^ a b Raz, Joseph. "The Rule of Law and Its Virtue", The Law Quarterly Review, volume 93, page 195 (1977); reprinted by Culver, Keith. Readings in the Philosophy of Law, page 13 (Broadview Press, 1999).
  61. ^ Luis Flores Ballesteros. "Corruption and development. Does the “rule of law” factor weigh more than we think?" 54 Pesos May. 2008:54 Pesos 15 Nov 2008. [1]
  62. ^ Peter Barenboim, Defining the rules, The European Lawyer, Issue 90, October 2009
  63. ^ Peter Barenboim, Natalya Merkulova. "The 25th Anniversary of Constitutional Economics: The Russian Model and Legal Reform in Russia, in The World Rule of Law Movement and Russian Legal Reform", edited by Francis Neate and Holly Nielsen, Justitsinform, Moscow (2007).
  64. ^ Hayek, F.A. (1994). The Road to Serfdom. Chicago: The University of Chicago Press. p. 81. ISBN 0-226-32061-8.
  65. ^ Hayek, F.A. (1994). The Road to Serfdom. Chicago: The University of Chicago Press. p. 81. ISBN 0-226-32059-6.

Further reading

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