The rule of law is a political and legal principle that generally entails and ensures that the law is clear, consistent and open; individuals and groups have access to justice (such as fair, independent judiciaries); and that government institutions (such as the executive, legislature and judiciary) are subject to the law. It entails that all people and institutions within a political body are subject to the same law.Hobson, Charles. The Great Chief Justice: John Marshall and the Rule of Law, p. 57 (University Press of Kansas, 1996): according to John Marshall, "the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature." This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". According to Encyclopædia Britannica, it is "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."
Legal scholars have expanded the basic rule of law concept to encompass, first and foremost, a requirement that laws apply equally to everyone. "Formalists" add that the laws must be stable, accessible and clear. More recently, "substantivists" expand the concept to include rights, such as human rights, and compliance with international law..
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. 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 of liberty. The phrase "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."
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. Distinct is the rule of man, where one person or group of persons rule arbitrarily.Paul. "Resisting the Rule of Men." . Louis ULJ 62 (2017): 333. "I will say that we have "the rule of men" or "personal rule" when those who wield the power of the state are not obliged to give reasons to those over whom that power is being wielded—from the standpoint of the ruled, the rulers may simply act on their brute desires."
History Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey,Wormuth, Francis. The Origins of Modern Constitutionalism, p. 28 (1949).Bingham, Thomas. The Rule of Law, p. 3 (Penguin 2010). development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, Mesopotamia, India, and Rome.Black, Anthony. A World History of Ancient Political Thought (Oxford University Press 2009).
Early history (to 15th century)
The earliest conception of rule of law can be traced back to the Indian epics Ramayana and Mahabharata - the earliest versions of which date around to 8th or 9th centuries BC.Brockington (1998, p. 26)Buitenen (1973) pp. xxiv–xxv The Mahabharata deals with the concepts of Dharma (used to mean law and duty interchangeably), Rajdharma (duty of the king) and Dharmaraja. It states in one of its slokas that,"The people should execute a king who does not protect them, but deprives them of their property and assets and who takes no advice or guidance from any one. Such a king is not a king but misfortune."
Other sources for the philosophy of rule of law can be traced to the Upanishads which state that, "The law is the king of the kings. No one is higher than the law. Not even the king." Other commentaries include Kautilya's Arthashastra (4th-century BC), Manusmriti (dated to the 1st to 3rd century CE), Yajnavalkya-Smriti (dated between the 3rd and 5th century CE), Brihaspati Smriti (dated between 15 CE and 16 CE).
Ancient Greece Several scholars have also 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, or as one held in conjunction with the concept of popular sovereignty. 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. Aristotle, in his Politics, 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."Aristotle, Politics 3.16
The idea of the rule of law can be regarded as a modern iteration of the ideas of ancient Greek philosophers, who argued that the best form of government was rule by the best men.David Clarke, "The many meanings of the rule of law " in Kanishka Jayasuriya, ed., Law, Capitalism and Power in Asia (New York: Routledge, 1998). Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law. 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."Cooper, John et al. Complete Works By Plato, p. 1402 (Hackett Publishing, 1997). Similarly, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. 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.
The Roman statesman Cicero is often cited as saying, roughly: "We are all servants of the laws in order to be free."In full: "The magistrates who administer the law, the judges who act as its spokesmen, all the rest of us who live as its servants, grant it our allegiance as a guarantee of our freedom." Original Latin: "Legum ministri magistratus, legum interpretes iudices, legum denique idcirco omnes servi sumus ut liberi esse possimus." 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.
China In China, members of the school of legalism during the 3rd century BCE 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.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, pp. 161–162.Munro, Donald. The Concept of Man in Early China. p. 4.Guo, Xuezhi. The Ideal Chinese Political Leader: A Historical and Cultural Perspective. p. 152. 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.
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."Tamanaha, Brian (2004). On the Rule of Law. Cambridge University Press. p. 3
England 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."
In 1215, Archbishop Stephen Langton gathered the Barons in England and restricted the powers of King John and future sovereigns and magistrates under the rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes.Magna Carta (1215) translation, British LibraryMagna Carta (1297) U.S. National Archives . The influence of Magna Carta ebbed and waned 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. The ideas contained in Magna Carta are widely considered to have influenced the United States Constitution.
The first known use of this English phrase occurred around 1500.Oxford English Dictionary (OED), "Rule of Law, n.", accessed 27 April 2013. According to the OED, this sentence from about 1500 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 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." 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 ...Hallam, Henry. The Constitutional History of England, vol. 1, p. 441 (1827).
Modern period (1500 CE – present)
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.Ferro, Víctor: El Dret Públic Català. Les Institucions a Catalunya fins al Decret de Nova Planta; Eumo Editorial;