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Rule of Law: History

The Code of Hammurabi

The earliest written legal code for a government was the Code of Hammurabi for Babylon, dating from 1750 BC. Hammurabi, who needed to unite his disparate realm, decided to establish common rules of conduct, commerce, and devotion to the king under a system overseen by judges. In comparison with contemporary standards, much of the code is severe: many crimes were punishable with death or corporal punishment. Nevertheless, it was remarkable for introducing the ideas that government should be subject to the law; that laws should be based on public rules, not secret or divine ones; and that law should be efficiently and fairly applied by judges, principles that Belton mentions above.

The Modern Understanding of Athens

In the area of the rule of law, ancient Athens is best known for its prosecution and execution of the great philosopher Socrates in 399 BC, on charges of treason and corrupting Athens' youth by encouraging philosophical discussion. But this case, usually presented as an example of unjust mob rule, masks the contributions of ancient Athens in the development of rule of law principles. In the Athenian system, magistrates and jurors were drawn by lottery from the Assembly, composed of citizens, since it was believed that judgment should be by one's peers. All citizens had the right to bring both private and public matters before the courts. In commercial law, the principle of binding and enforceable contracts among equal citizens was introduced. This meant that law, not brute force, determined commercial exchanges, helping to make Athens the region's center for trade. Despite its large juries (up to 5,000), a common subject of mockery by critics, the Athenian system appears to have worked efficiently, and citizens safeguarded it jealously. Juries composed of peers and equal access by citizen to courts are just some of the characteristics of Athenian law included in most contemporary justice systems.

Roman Law

Most scholars, however, cite the Roman system as the most important tradition influencing Western law. Roman law was less egalitarian in origin, since its first purpose was to protect aristocratic landholders. Furthermore, the spread of Roman law occurred through empire and military dominance. Yet the Roman tradition implanted several basic principles of the rule of law, including the need for public knowledge of civil law and judicial procedures, the evolution of law according to precedent and circumstances, and the idea that natural law (universal rights of man) can provide the basis for positive (man-made) law. The Roman tradition was maintained under the Byzantine Empire and over time was incorporated into much of European law and practice throughout the Holy Roman Empire.

The Magna Carta

For many theorists, the most important idea in the rule of law as a concept of governance was the signing of the Magna Carta in England in 1215. Signed by King John, this document limited—for the first time—the power of the king in relation to his subjects by forbidding the raising of taxes without the approval of a partially elected parliament (see also "Constitutional Limits"). It also established other equally important limits:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we (the King) proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land [emphasis added].

The Anglo-Saxon Tradition

Abuses of power by the Stuart monarchy in England during the early 17th century led to the adoption of the Petition of Grievances in 1610, which established the right of citizens to petition government to seek redress for abuses of power. Charles I's attempt to reassert the monarchy's absolute power by raising an army without parliamentary approval led to the adoption of the Petition of Right in 1628, which more firmly grounded in law the principle of no taxation without representation.

Protest supporting the Habeas Corpus Act

The most important aspect of the Anglo-Saxon legal tradition, though, was the adoption of the Habeas Corpus Act in 1679. Charles II, undeterred by the bloody struggle of the English Civil War (1642–51) between Parliamentarians and Loyalists and the brief period of the Commonwealth under Oliver Cromwell and his son (1653–59), quickly abused his powers upon being restored to the monarchy. He imprisoned his opponents without cause and attempted to reestablish Catholicism as the state religion against the clear will of Parliament and the people. Parliament reasserted its rights through the Habeas Corpus Act. The principle of habeas corpus, also known as "the Great Writ," holds that those who have been incarcerated must have their cases heard in court to determine the validity of the arrest or conviction (in Latin, habeas corpus literally means "to have the body"). While the principle had been in existence for over two centuries, the Habeas Corpus Act formalized its use and asserted that the government has neither the right to imprison without cause nor the right to act above the law in relation to its citizens. The law ordered "all sheriffs, gaolers and other officers" in custody of "the King's subjects" to "yield authority" to all writs of the court, meaning that no government official could ignore the law. Today, the principle of habeas corpus provides protection against the abuse of government power through arbitrary or politically motivated imprisonments.

The Glorious Revolution of 1688 replaced the Catholic James II with his daughter, Mary, a Protestant, and her husband (and also her cousin), William of Orange, on the condition that they accepted the English Bill of Rights, adopted in 1689. This bill reinforced the Habeas Corpus Act, the Petition of Right, and the Petition of Grievances, and established other rule of law standards as constitutional foundations, such as the right to trial by jury, the prohibition against cruel and unusual punishment, and limitations on the powers of the monarchy. The Act of Settlement of 1701 later established Parliament's power to determine succession to the monarchy.

The English Bill of Rights recognized the importance of positive rights, which were being asserted by Enlightenment thinkers.

The Rule of Law as Bulwark Against Government Tyranny

The English Bill of Rights recognized the importance of positive rights, which were being asserted by Enlightenment thinkers. Positive rights refer to a moral obligation that is owed to someone, as opposed to negative rights, which require only the absence of interference. According to many Enlightenment philosophers, these positive rights were natural rights, meaning that all humans were entitled to them and that the state could not violate them. Such rights were an indispensable accompaniment to representative government and were adopted by supporters of both the American and French Revolutions. The American version of the Bill of Rights expanded constitutional protections to include the right to a fair and speedy trial, the right not to incriminate oneself, the right to confront one's accuser in court, and the right to protection against unwarranted search and seizures. In the U.S. Constitution, these standards of rule of law — encompassed within the phrase "due process"— are considered the main bulwark against any threat of tyranny by the government.

The Separation of Powers

The question arises, then, as to who will enforce the standards of the rule of law. In modern democracies, the rule of law relies on the presence of a judiciary or court system that can act independently of executive and legislative powers, ruling on the basis of established law and not on the basis of arbitrary or politically motivated considerations. Separation of powers is thus essential to the rule of law. Baron de Montesquieu, whose The Spirit of Laws (1748) was a guide for many of the framers of the U.S. Constitution, argued:

Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

The independence of the federal judiciary in the United States is established through the "advise and consent" powers of the Senate, such as the need for Senate approval of the president's nominees for federal judges, and the Senate's sole authority to impeach judges from their lifetime appointments, whether due to incompetence or malfeasance. The independence of the judiciary was further strengthened in Marbury v. Madison (1803), decided by Chief Justice John Marshall, which asserted the Supreme Court's power of judicial review, meaning that the Court became the final arbiter of whether laws and the government's actions are constitutional.

Gandhi succeeded in forcing the British government to abide by its own principles.

The Expansion of Rule of Law

The incorporation of the rule of law and the separation of powers in British and U.S. law had a great influence over the next two centuries, first as a result of the expansion of the British Empire, and second as a result of the growing influence of the United States as a world power. Rule of law principles came to symbolize the expansion of rights and liberties around the globe. More significant, natural law arguments in favor of due process, human rights, and self-governance became the instruments for many independence and democracy movements worldwide. Mahatma Gandhi is one of the best-known and most successful of the advocates for combining claims of legal rights with civic resistance against unjust laws. Gandhi succeeded in forcing the British government to abide by its own principles. This strategy has attracted many followers. In the United States, followers of Gandhi, such as Bayard Rustin and Martin Luther King Jr., used the instruments of protest and civic resistance to empower African Americans to act against Jim Crow and legalized discrimination.

Karl Brandt being sentenced at the Nuremberg Trials

The Contraction of Rule of Law

As noted above, tyranny stands opposite to the rule of law—it may even reflect its total breakdown. In dictatorships, the institutions of the rule of law frequently become instruments of oppression. Indeed, recognizing the power of law as a foundation for governance, dictatorships develop their own perverted claims to the rule of law. Nazi Germany and other Fascist states, for instance, imposed legal systems based on the supreme power of the leader and the superiority of one race over all others. Communist regimes superimposed the class struggle over "bourgeois" concepts of human rights in all laws, and then established the absolute authority of Communist parties to decide on all aspects of law and life. Many intellectuals were seduced by the idea of a higher form of egalitarianism based on "national" or "socialist" law. In fact, there was no law, only justification for the most brutal actions—mass murder, forced labor, ethnic cleansing, and genocide.

Universal Rule of Law

The defeat of fascism and Nazi Germany propelled the establishment of universal standards of human rights and the rule of law through agreements such as the Universal Declaration of Human Rights (1948), the Convention Against Genocide (1948), the Covenant on Civil and Political Rights (1966), and the Convention Against Torture (1984). The collapse of communism and the Soviet Union in 1989–1991, the end of apartheid in South Africa in the early 1990s, and the collapse of Fascist regimes in Latin America in the 1980s and 1990s further reinforced the rule of law as a universal principle not only of justice but also of governance.

Islamic Law

There is, however, an Islamic tradition of law that competes with the Western definition of the rule of law based on individual rights. The Islamic system of justice (or Sharia), involves the application of sacred principles as related to the Prophet Muhammad by Allah (the Arabic word for God). In many Muslim countries, Islamic or Sharia courts are complementary to state courts in civil and religious matters.

Members of the Taliban
Such courts are presided over by clerics who interpret the Koran for its application in specific instances of claimed injustice or appeals for mediation. Sometimes, such religious courts follow established procedures and act as a positive mediating influence in society. Sometimes, however, Islamic or Sharia courts act according to procedures based on a particular interpretation of Islam or national custom. This could lead to abuses for political purposes or to the promotion of a sectarian understanding of the Koran (Wahhabism in Saudi Arabia, for example). In such cases, religious courts operate outside of the concepts of the rule of law discussed above that stress equal application of the law, due process, uniformity of expectations, and so on. Thus, in all Muslim countries where democracy has been established (as well as some other predominantly Muslim countries), state courts supersede religious courts.

In a few countries, such as Iran, Afghanistan under the Taliban, and Saudi Arabia, Islamic justice is a tool for imposing a harsh dictatorship based on restrictive interpretations of Islamic law and texts. In recent decades, radical Islamism has also spread to other countries and is used as a tool for seeking power or imposing the will of the majority over the minority (see, for example, the Country Studies of Sudan or Nigeria). More significant, fanatical movements such as al-Qaeda have arisen seeking to achieve a radical vision of Islam in order to establish a universal theocracy. In this vision, the use of violence against innocent Muslims and non-Muslims alike is justified to fulfill radical Islamist goals. Such views are antithetical to any ideas of the rule of law and contrary to the understanding of Islam for most Muslims today.