Politics & International Relations
Rule of Law
The Rule of Law refers to the principle that all individuals and institutions, including the government, are subject to and accountable under the law. It emphasizes the importance of clear, predictable, and transparent laws that are applied equally to all members of society. This concept is fundamental for ensuring justice, protecting human rights, and maintaining a stable and fair society.
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11 Key excerpts on "Rule of Law"
eBook - PDFJust Words
The Effectiveness of Civil Justice in European Human Rights Jurisprudence
- Andrej Auersperger Matić(Author)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
2 Justice and the Rule of Law 2.1 introduction The Rule of Law – along with democracy and human rights – is one of the leading notions in international relations and an object of intense public debate in many countries. 45 As a political ideal, it is typically invoked to argue for greater recognition of law and legal institutions in modern society and used as a criterion to distinguish between states in which law plays a prominent role and those in which it does not. As a legal principle, it is incorporated in many constitutions, frequently referred to by courts and elaborated at length in legal doctrine. Its rhetorical power has been strengthened by the worldwide growth of legalism and democratic governance, in particular through the spread of constitutionalism and the flowering of national and international human rights instruments. Moreover, it has been supported by the increase in international trade and investment, which is often accom- panied by calls for legal security and protection of investors’ rights. Among legal experts, it has evolved into a talking point, and it is often quoted as a kind of self-evident postulate. The growth of the Rule of Law rhetoric is, interestingly, taking place even if there is no generally accepted understanding of what it actually is in either political or legal terms. 46 After many years of invocation, its substance remains something of a mystery, posing a challenge for policymakers, legal professionals and 45 eg Tom Bingham, The Rule of Law (Allen Lane 2010); Thomas Carothers (ed), Promoting the Rule of Law Abroad: In Search of Knowledge (Carnegie Endowment for International Peace 2006); Rachel Kleinfeld, Advancing the Rule of Law Abroad (Carnegie Endowment for International Peace 2012); James J Heckman, Robert L Nelson and Lee Cabatingan (eds), Global Perspectives on the Rule of Law (Routledge 2010); Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press 2004). 46 Kleinfeld (n 45) 7. 18
eBook - PDF- Gianluigi Palombella, Neil Walker, Gianluigi Palombella, Neil Walker(Authors)
- 2008(Publication Date)
- Hart Publishing(Publisher)
9 The Rule of Law in International Law Today STÉPHANE BEAULAC I. INTRODUCTION T he ‘Rule of Law’ is undoubtedly one of the most powerful expressions in the modern world. 1 In a sense, it has become an activity in itself, a mental-social phenomenon which exists within human consciousness and acts independently within physical social real-ity, 2 like a pat on the back or a slap in the face. Or, to put it differently, through the cognitive process of the human mind, the language of the Rule of Law has not only represented reality, but has also played a leading role in the creation and transformation of reality; accordingly, it has con-tributed to the modelling of the shared consciousness of society, 3 includ-ing that of international society. While the various ideas associated with the expression are undoubt-edly very old 4 —going as far back as Plato and Aristotle—the emergence of the Rule of Law as a potent discursive tool within political and legal circles has been relatively recent. 5 The phrase itself was actually coined by nineteenth-century British author Albert Venn Dicey, 6 in his masterpiece 1 On the role of language, especially in the context of international law, see S Beaulac, The Power of Language in the Making of International Law—The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia (Leiden: Martinus Nijhoff, 2004). 2 This borrows from the speech-act theory of JL Austin, How to do Things with Words (Oxford: Clarendon Press, 1962). 3 On the creation and transformation of human-constructed reality through the use of language, see L Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge, 1961); and L Wittgenstein, Philosophical Investigations (Oxford: Blackwell, 1958). 4 See JN Shklar, ‘Political Theory and the Rule of Law’ in AC Hutchinson and P Monahan (eds), The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987) p 1.
eBook - PDF- Brian Smith(Author)
- 2007(Publication Date)
- Red Globe Press(Publisher)
Ukraine was slow to pass new criminal, civil, administrative and procedural codes. Foreign aid has had little impact in countries supported by the USA, with the Rule of Law actually deteriorating in some cases (USGAO, 2001). Recipient governments rarely express an interest in reform before donors offer support. Nor can it be assumed that the judiciary will be supportive – supreme courts have rarely been allies in pushing for reform. Civil society groups cannot be guaranteed to support reform, often being more involved in partisan and ideological conflict and competition with each other and with state institutions. Public demand has rarely initiated reform, public dissatisfaction with the judicial system has never directed the course of reform, and the involvement of the public in reform efforts has been minimal. So donor resources and presence have usually had to substitute for political will (raising questions about how lasting reforms 98 Good Governance and Development will be), and ‘constituency-building’ has tended to focus on increasing the interest and knowledge of the legal professions and building support in public institutions (Hammergren, 1998). Conclusion The Rule of Law is a complex constitutional principle comprising different conceptions of justice – as regularity, as equality, as ubiquity and as natural. It is most obviously a foundation of democracy. But additional importance attaches to it when it is shown that it is necessary for economic as well as political development, reflecting the assumption in economic theory that economic growth is dependent on non-interference by governments in private property rights. The Rule of Law is relevant to social development, meaning the alleviation of poverty. Reforming insti-tutions to strengthen the Rule of Law is intensely political, and requires the creation of incentives for political leaders, and for different sections of society to be convinced that the Rule of Law is preferable to the status quo .
eBook - PDFPolitical Concepts
A Reader and Guide
- Iain MacKenzie(Author)
- 2005(Publication Date)
- Edinburgh University Press(Publisher)
2 Rule of Law Sylvie Delacroix Introduction From a rhetorical perspective, the ‘Rule of Law’ is one of these concepts whose evocative power directly depends on its enigmatic character. Despite its currency in contemporary political debates, its lack of precise meaning makes it apt to various and often incompatible uses. Far from being the politicians’ privilege, this concept is at the root of ground-breaking legal cases which significantly shaped today’s democracies. Yet its vague and controversial meaning has raised alarm among some contemporary critical thinkers, who see the Rule of Law as a conservative ideology standing in the way of social and political justice. On a literal – and limited – understanding, the Rule of Law indeed requires a ‘law of rules’(Scalia 1989: 1175), and in some cases justice can only be achieved by departing from the rules. ‘The Rule of Law, it is argued, is preferable to that of any individual’ (Aristotle 1986: 88). Aristotle’s famous phrase is quoted as an introduc-tion to most accounts of the Rule of Law, and yet this sentence is likely to sound rather peculiar to many contemporary readers. In the Middle Ages, Aristotle’s phrase was associated with the widely shared feeling that the world was indeed ruled by a Supreme Law that flowed either from God or from some understanding of Nature. Existing independently of the will of any individual, these ‘natural laws’ (as instantiations of the Supreme Law) bound all members of society, kings and subjects alike. 1 Since the sixteenth century, that understanding of law has been seriously challenged, notably by Michel de Montaigne, who, questioning the existence of natural laws, writes: ‘Laws are often made by fools, and even more often by men who 314 Rule of Law fail in equity because they hate equality: but always by men, vain authori-ties who can resolve nothing’(1991: 1216).
eBook - PDFExclusion from Public Space
A Comparative Constitutional Analysis
- Daniel Moeckli(Author)
- 2016(Publication Date)
- Cambridge University Press(Publisher)
There is broad consensus today, therefore, that any concept of the Rule of Law must incorporate, at the very least, a number of fundamental formal elements. These minimal requirements, or principles, can be found in all three legal systems at issue. They include the principle of legality; the requirement that laws be public, prospective, general, clear and stable; the principle of formal equality; due process guarantees; and access to justice. Some of these principles are of parti- cular relevance for the present context and are therefore discussed in more detail below. 4.1.7 Link to fundamental rights and democracy It is widely acknowledged that the Rule of Law is a prerequisite for upholding fundamental guarantees of liberty and equality. The link between the Rule of Law and fundamental rights is stressed in the pre- ambular passage of the UDHR quoted above, according to which ‘human rights should be protected by the Rule of Law’. 91 By requiring authorities to act in accordance with laws declared publicly in clear terms in advance, the Rule of Law enables people to plan and act as autonomous rational beings and thus to exercise their liberties. As Montesquieu put it, ‘liberty is a right of doing whatever the laws permit’. 92 Furthermore, the Rule of Law forces those in power to articulate their claims in terms of rules that are equally applicable to everyone, both the powerful and the powerless, and, as E.P. Thompson understood, thus renders them ‘prisoners of their own rhetoric’. 93 In this way, the very form of law functions as a crucial 90 See also Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (2009); Weber, ‘Rechtsstaatsprinzip als gemeineuropäisches Verfassungsprinzip’ (2008); Carpano, État de droit et droits européens (2005); Fernandez Esteban, The Rule of Law in the European Constitution (1999), pp. 65–101; MacCormick, ‘Der Rechtsstaat und die Rule of Law’ (1984).
eBook - PDFRule of Law Dynamics
In an Era of International and Transnational Governance
- Michael Zurn, Andre Nollkaemper, Randy Peerenboom(Authors)
- 2012(Publication Date)
- Cambridge University Press(Publisher)
They claim, however, that there is a growing normative expectation that states will comply with basic Rule of Law principles. This emerging standard of Rule of Law is reinforced by the traditional international law notion of a “minimum standard of justice” applicable to aliens, foreign investment law, and human rights law. The unlikelihood that these three disparate and at times conflicting areas of law will lead to a coherent concept of Rule of Law suggests the need for a more comprehensive and theoretically informed foundational multilateral treaty (or treaties) of the sort that have underpinned the international human rights movement, although the authors themselves do not discuss the possibility of such treaties or advocate this approach. Whereas Chapter 2 focuses on the requirements that international law formulates for the introduction of Rule of Law norms and principles into domestic legal systems, the next two chapters examine Rule of Law at the international level. Tim Gemkow and Michael Z¨ urn ask in Chapter 3 to what extent and why the diffu- sion of the Rule of Law concept to the international level has occurred. They argue that the rise of political authority beyond the nation-state and the increased intrusiveness of international regulations form the decisive process underlying this development. Because political authority requires legitimacy, the incorporation of the Rule of Law concept may help international institutions to enhance their legitimacy. This is, however, mainly a functional argument. Gemkow and Z¨ urn therefore go on to ask to what extent and through which causal mechanisms institutional rules that derive from the Rule of Law concept have developed in the past decades. Thus the chapter inquires why Rule of Law norms diffuse across international and national levels. In looking at one component of the Rule of Law concept – the
eBook - PDFOpposing the Rule of Law
How Myanmar's Courts Make Law and Order
- Nick Cheesman(Author)
- 2015(Publication Date)
- Cambridge University Press(Publisher)
It undermines the Rule of Law by straining the limits of legitimate legal order to serve illegitimate goals. Similarly, Jothie Rajah writes that rule by law ‘signifies “law” which, in content and institutional execution, is susceptible to power such that the rights content of “law”, and restraints on and scrutiny of state power, are undermined’. 34 Mark Massoud characterises it as ‘a kind of state-led abuse of the Rule of Law’. 35 Rule by law is what happens when rulers make use of law for their own ends, rather than for higher-order goals. It is essentially instrumental and ulti- mately damaging to the Rule of Law. Whether used to describe some kind of minimal Rule of Law, or a political arrangement in which rulers treat law as an instrument for control, rule by law is like rule of men symmetrical to the Rule of Law. However, conceptually it is more ambiguous than the traditional opposition to the Rule of Law. Rule by law is based on an assumption that all political arrangements can be made legible by comparing criteria for the Rule of Law along a ‘continuum of legality’. 36 Unlike the traditional relation between the former two concepts, it concerns the grey zone between the rule-of-law ideal and the other end of the continuum. Because it has no immanent contents of its own, rule by law cannot function as an ‘other’ of the Rule of Law, except insofar as it designates some other part of the continuum. Rule by law is either what you get because institutions are not working well enough to 31 Tamir Moustafa and Tom Ginsburg, Introduction, Rule by Law: The Politics of Courts in Authoritarian Regimes, eds. Tom Ginsburg and Tamir Moustafa (Cambridge and New York: Cambridge University Press, 2008) 1–22. See also Tamir Moustafa, ‘Law and Courts in Authoritarian Regimes’, Annual Review of Law and Social Science 10 (2014): 281–99. 32 Ratna Reuban Balasubramaniam, ‘Judicial Politics in Authoritarian Regimes’, University of Toronto Law Journal 59.3 (2009): 412.
eBook - PDF- John Laws(Author)
- 2021(Publication Date)
- Hart Publishing(Publisher)
The Rule of Law has acquired great resonance. It has become a slogan. I. Two Meanings of the Rule of Law The meaning of the Rule of Law is, however, strikingly elusive; there is no consen-sus, at least no overall consensus, on the subject. Despite its grand protestation in section 1, the Constitutional Reform Act 2005 does not tell us what the Rule of Law is (or what our legislators think it is). For some it is a Protean concep-tion. That approach is exemplified by Lord Bingham’s Sir David Williams 5 lecture The Rule of Law , delivered on 16 November 2006, from which, as Lord Bingham said in the Preface, he drew heavily in coming to write his book on the subject, published in 2010. Two Meanings of the Rule of Law 15 6 Bingham (n 4) ch7, 66. 7 J Raz, ‘The Rule of Law and its Virtue’ in J Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press, 1979) 211, 221. 8 Bingham (n 4) 67. There is as I have said an agreed beginning: the uncontentious proposition, which I stated at the outset, that State power must be exercised in accordance with promulgated, non-retrospective law made according to established procedures. Some regard this as all that the Rule of Law requires (in addition, presumably, to effective enforcement procedures). This has often been called the ‘thin’ theory of the Rule of Law. But as an overarching constitutional principle, if it stands alone this is very weak soup indeed; for although it insists on the virtues of legal certainty and accessibility, and of compliance with the law, it insists on nothing else.
eBook - PDFTipping Points in International Law
Commitment and Critique
- Jean d'Aspremont, John Haskell(Authors)
- 2021(Publication Date)
- Cambridge University Press(Publisher)
If international law abides by the Rule of Law, Crawford explained, we ought to expect the absence of arbitrary power, laws that are always prospect- ive, a generality of application, and the independence of the judiciary. Crawford’s assessment from twenty years ago was that the results were mixed. 21 Query how, if we join in the pursuit of this checklist view of the Rule of Law, international law ranks today. This is all fair enough, and in principle the questions of international law’s existence and international law’s commitment to the Rule of Law seem analyt- ically distinct. The better approach, I think, is to view the two questions together, though this depends entirely on the context in which we view the relation of the questions. As I shall suggest in the next few pages, I offer the 18 See generally, Tom Bingham, The Rule of Law in the International Legal Order, in The Rule of Law in International and Comparative Context (Robert McCorquodale, ed., 2010); Kratochwil, supra note 6. 19 See, e.g., Jeremy Waldron, The Concept and the Rule of Law, 43 Georgia Law Review 1 (2008); Joseph Raz, The Rule of Law and its Virtue, 93 Law Quarterly Review 195 (1977). See also, Handbook on the Rule of Law (Christopher May and Adam Winchester, eds., 2018). 20 James Crawford, International Law and the Rule of Law, 24 Adelaide Law Review 3, 8 (2003). 21 Id. at 12. 274 Justin Desautels-Stein context of ‘liberal legal thought’ for understanding the entwined relation between international law’s identity and fidelity. When viewed from this vantage point, the three answers to the question of whether international law exists turn out to also be three separate arguments for international law’s fidelity to ‘the Rule of Law’. As I argue below, when viewed in the context of liberal legal thought, the identity of the international Rule of Law turns on whether jurists are generally capable of providing legal justifications that appear free of political or moral capture.
eBook - PDFThe Problems of a Political Animal
Community, Justice, and Conflict in Aristotelian Political Thought
- Bernard Yack(Author)
- 2023(Publication Date)
- University of California Press(Publisher)
C H A P T E R SIX The Rule of Law Although Aristotle makes numerous suggestions about how to improve the quality of life in ordinary political communities, two of these sug- gestions stand out as the most important for a decent political order: the Rule of Law and the mixed regime. I discuss the former in this chapter and the latter in chapter 7. The claim to be governed by laws, rather than by individual men and women, is one of the most popular and enduring boasts of republican rhetoric. Liberal republicans portray the Rule of Law as a set of hedges that blocks and channels the cruel fury of mobs and monarchs; they celebrate it as a check on the arbitrary exercise of power by capricious monarchs, arrogant aristocrats, and vindictive demagogues. Radical re- publicans portray the Rule of Law as the fair and impartial exercise of authority that one expects from a responsible and well-educated citi- zenry; they celebrate it as an important part of the freedom from per- sonal domination that participatory governments seek to protect. 1 Both groups loudly proclaim the need to ensure that the community's laws rule supreme over the wills of particular individuals. 1. Locke presents the most influential theoretical defense of the liberal republican understanding of the Rule of Law, whereas Rousseau presents the most influential theoret- ical defense of the radical version. Political rhetoric celebrating the liberal republican version of the Rule of Law is far too familiar to American audiences to need any reference. For political rhetoric celebrating the more radical republican view, consider Pericles' praise of law in his famous "funeral oration"; Thucydides, History of the Peloponnesian Wars, book 2, ch. 37. 175 176 The Problems of a Political Animal But republican boasts about the Rule of Law are very easy to under- mine and ridicule.
eBook - PDFDecolonising International Law
Development, Economic Growth and the Politics of Universality
- Sundhya Pahuja(Author)
- 2011(Publication Date)
- Cambridge University Press(Publisher)
172 5 Development and the rule of (international) law I Introduction Over the last ten or so years, the Rule of Law has experienced a marked rise in popularity. As many have observed, after the end of the Cold War and by the middle of the 1990s the Rule of Law was being advanced by all kinds of strange bedfellows as a panacea for the world’s ills – from Russia to China, from Rwanda to Bosnia, its implementation was seen as a ‘rising imperative of the era of globalisation’. 1 And although widespread faith in its international dimension seems to have dimin- ished somewhat since the inauguration of the ‘war on terror’, the embrace of the Rule of Law by the development institutions and associ- ated aid machinery has, if anything, tightened rather than slackened. Around the end of the 1980s the World Bank in particular, as well as the International Monetary Fund (IMF), began to take an interest in ‘governance’ and institutions – including law generally – and their role in the promotion of development. 2 Not long after this already signifi- cant shift, the Rule of Law was directly invoked for the first time as both cause and result of development in the 1997 issue of the World Development Report, the Bank’s flagship publication. 3 1 Thomas Carothers, ‘Rule of Law Revival’ (1998) 77(2) Foreign Affairs 95, 95. 2 On this turn, see for example, Amanda Perry, ‘International Economic Organisations and the Modern Law and Development Movement’ in Ann Seidman, Robert Seidman and Thomas Wälde (eds.), Making Development Work: Legislative Reform for Institutional Transformation and Good Governance (The Hague: Kluwer, 1999) 19. For the turn to governance, see also, World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth (Washington DC: World Bank, 1989); James Thuo Gathii, ‘Good Governance as a Counter-Insurgency Agenda to Oppositional and Transformative Social Projects in International Law’ (1999) 5 Buffalo Human Rights Law Review 107.
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