The Rule of Law
By Gilbert Pleuger
new perspective Vol 10, No 3
IN POST 1789 POLITICAL HISTORY a good deal of attention is paid to the form and working of government and an assessment of the extent to which it is representative of citizens’ wishes, or in common parlance the degree to which it is democratic. This is one focus with popular study topics such as the French Revolution, the liberal and national risings in the 1840s, the Bismarckian empire and Stalinist Russia. There is another, complimentary, yardstick for the form and working of government that is often overlooked except by constitutional historians, the concept called the rule of law. This can be a more telling indicator of the extent that a government provides for the political wellbeing of its citizens and it can be used in assessments of representative rule, as examples, in Stalin’s Russia, Hitler’s Germany, Pinochet’s Chile, Mugabe’s Zimbabwe and the Guantanamo Bay dentention camp and the Ukraine 2004-5 presidential elections situations. A consideration of this concept can refine discussion and judgement on the nature of politics and government of the past and present.
Normal courts and normal law for all
One unnamed reference-book writer defined the rule of law as ‘the form of government in which no power can be exercised except according to procedures, principles and constraints contained in the law, and in which any citizen can find redress against any other, however powerfully placed, and against the officers of the State itself, for any act which involves a breach of the law’ (A Dictionary of Political Thought, Macmillan, 1982). Readers will note that the emphasis is upon citizens’ equality before the law and the predictability of actions: in short, enforcement of law is fair and not arbitrary and thereby citizens have security.
The rule of law concept was defined in outline by A.V. Dicey in his Introduction to the Study of the Law of the Constitution, first published in 1885. He wrote that the rule of law comprised three principles. These require (I) that a citizen’s legal duties and his liability to punishment should be determined by the ‘regular law’, and not by the arbitrary fiat of officials or the exercise or wide discretionary powers; (2) that disputes between a private citizen and an official should be subject to the jurisdiction of the ordinary courts; and (3) that the fundamental rights of the citizen should not rest on a special, constitutional, guarantees but should arise from the ordinary law. In Dicey’s view these were desirable principles and underlay the British (unwritten) constitution at the time.
Contemporary versions of the rule of law stress the importance of two principles: (1) that the exercise of discretionary powers of rule-making and adjudication should be controlled by impartial tribunals in the light of stated general principles designed to secure that the power should be exercised fairly and within the limits prescribed by law; and (2) that as large an area of the law as possible and of the criminal law in particular should provide clear guidance to citizens as to their rights and duties, and that they should be liable to punishment for breach of the law only if they had the capacity and a fair opportunity to conform their conduct to it.
This early definition has been criticised under two heads. Firstly, it was seen as descriptive of the (unwritten) British constitution at that time and thereby, and secondly, Dicey’s definition failed to specify the constitutional safeguards necessary for the rule of law. As an example, while both state officials and private citizens may be bound by the same law enforced through the same courts, the law itself may embody privileges for officials: this is especially possible where, as in Britain, the sovereign in Parliament is the unlimited lawmaker. As one writer, Geoffrey Marshall, commented, ‘procedural regularity and a common set of courts is compatible with legal tyranny’. A more secure establishment of the rule of law is achieved by means to protect the independence of the judiciary (that is, all judges and their courts) and by the written definition of constitutional rights. These rights should include, for example, protection for freedom of expression and movement and procedural guarantees for due process of law, for fair trials and for precisely drafted laws, for no retrospective laws and for no cruel or unusual punishments.
The rule of law and terrorism
While the rule of law may seem somewhat dry, clinical and remote from the heat of day to day politics, the absence of its secure existence can impact strongly of the life of anyone. The rule of law is threatened at times of social collapse or extensive terror. In these circumstances, as Machiavelli, author of The Prince noted in the sixteenth century, the State needs to be as ruthless and violent as those that threaten it and its citizens. As one writer noted: ‘… it must itself be prepared to resort to extremes … the rule of law must be prepared to disregard natural justice and judicial procedure while combating some types of offender’. (A Dictionary of Political Thought.) This can undermine values a society seeks to defend. For as long as there has been political society mankind has had to find a balance between the poles of citizens’ liberty and government repression. Agreement on where that balance lies is not easily achieved.