7 Apr 2013

The Rule of Law 1

The rule of law is a concept which, at best of times, is a bit hard to define, though many have tried. A V Dicey is considered the foremost authority, and he put it this way:

  • The State cannot exercise arbitrary power: Dicey put forward that the extent of the State’s power, and the use of those powers, should be controlled by law, to provide a safeguard against the State acquiring and using wide discretionary powers (which can be used arbitrarily).
  • Equality before the law: No one is above the law, regardless of class or rank. Also, the representatives of the State are bound by the same laws as private citizens.
  • Supremacy of the law: That the law is to be known, general, stable, and not made in respect of particular persons. In other words, applying to all and to benefit none in particular.

[The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.] (http://www.ourcivilisation.com/cooray/btof/chap181.htm)

Or, to make it simpler:

  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. [http://en.wikipedia.org/wiki/Rule_of_law]

Other theorists such as Hayek, Raz, Thompson, Unger et al have further refined what the rule of law means, but essentially, what is said above remains core to the concept. Raz in particular though has maintained that an independent judiciary (financial independence included) is essential for the rule of law to be maintained.

State intervention usually means the rule of law can be bent, twisted or downright broken. A case in point is the intervention of the State in Germany that led to Nazism and WW2. [See http://en.wikipedia.org/wiki/Nuremberg_Laws ].

When I began to write this, I was told the beginning, the explanation on the rule of law, is too academic. Perhaps so, but I think it is important to get across what the rule of law is, and how important it is to every one of us. A breach of the rule of law affects every single person. I am reminded of Martin Niemoller:

"First they came for the Communists, but I was not a Communist so I did not speak out.

Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out.

Then they came for the Jews, but I was not a Jew so I did not speak out.

And when they came for me, there was no one left to speak out for me."

I hope to share with readers the wisdom of Lord Bingham, one of the most recognised legal minds of our times. On 16th November 2006 the Centre for Public Law held the sixth in the series of lectures in honour of Sir David Williams [Emeritus Rouse Ball Professor of English Law and Emeritus Vice-Chancellor of Cambridge University]. The lecture, simply entitled "The Rule of Law" was given by The Rt. Hon Lord Bingham of Cornhill KG, House of Lords. This lecture was later expanded into a fuller analysis and published by Penguin Books.

THE RULE OF LAW 2006

Lord Bingham argues that there are eight conditions for the rule of law to work:

  1. the law should apply equally to all;
  2. it should not be accessible only to the rich, meaning that disputes should be solved relatively cheaply;
  3. it must be easy to understand;
  4. it must protect fundamental human rights;
  5. it must be speedily enforced;
  6. the right to a fair trial is a cardinal requirement;
  7. public officials should not abuse their powers; and, finally,
  8. States should respect international law.

Below is Lord Bingham’s lecture. Sad to say, Lord Bingham passed away shortly after he released his lecture as a full book.

©Reprinted with permission from Jumbie’s Watch.

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