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Rule of Law: Essential Principles

"...the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."
Thomas Paine, Common Sense, 1776

"Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority."
Basic Law of the Federal Republic of Germany, Article 1

"Government in Saudi Arabia derives power from the Holy Koran and the Prophet's tradition."
The Basic Law of the Kingdom of Saudi Arabia, Article 7

The Ultimate Breakdown

The Crimean Tatars, a small Muslim group that had settled on the Crimean peninsula in the 14th century, had loyally joined in the Soviet Union's battle against Nazi Germany. Yet, during the course of World War II, Soviet leader Joseph Stalin questioned the Tatars' loyalty as a community because some Tatars had reportedly served in Nazi battalions. Stalin ordered the summary deportation of the entire Tatar population to Central Asia.



"Equality before the law" Graffiti
On May 18, 1944, agents of the Soviet secret police (the NKVD) began rounding up Tatars and deporting them by train to Uzbekistan and Kazakhstan. Within two days, approximately 200,000 Tatars had been exiled, and approximately a third of those exiled later died from hunger, exposure, and disease. Stalin's regime undertook similar actions against other small ethnic groups in the Caucasus in the attempt to rid the region of all minority communities.

The ethnic cleansings that occurred under Stalin were illustrations of his arbitrary and unchecked rule, which cost tens of millions of people their lives. Such abuses serve as examples of the ultimate breakdown in the rule of law.

A Necessary Accompaniment for Democracy

In democracies, the use of arbitrary power is considered anathema to the rule of law. Fundamentally, constitutional limits on power, a key feature of democracy, requires adherence to the rule of law. Indeed, the rule of law could be defined as the subjugation of state power to a country's constitution and laws, established or adopted through popular consent. This is the meaning of the commonly cited phrase "a government of laws, not men," made famous by John Adams, the second president of the United States. Under such a system, law should be supreme to the capricious authority of any individual. The rule of law is the supreme check on political power used against people's rights. Without the regulation of state power by a system of laws, procedures, and courts, democracy could not survive.

Fundamentally, constitutional limits on power, a key feature of democracy, requires adherence to the rule of
law.

Although the rule of law protects the majority from arbitrary power and tyranny, it should also protect the minority both from arbitrary power and the "tyranny of the majority" (see also "Majority Rule/Minority Rights"). Without the rule of law, there is likely to be either a dictatorship or mob rule. Some revolutionary thinkers have extolled mob rule as the highest form of political and social justice. In reality, however, mob rule has meant violence and political chaos, which are the very same conditions that often give rise to dictatorship, the exercise of arbitrary power, and the denial of individual rights.

The Rule of Law: Contrasting Principles

Much of what Americans consider to be the rule of law is derived from Anglo-Saxon legal traditions (see History section below). But there are many variations in how different countries organize legal and political institutions and apply the rule of law. These differences can often be confusing when talking about basic principles. For example, the American and British principles of "innocent until proven guilty," the right not to incriminate oneself, and the right to be tried by a jury of one's peers are so deeply ingrained in the fabric of the law and society that they might be considered absolute principles. Yet the rest of Europe, most of which follows a Roman law tradition, does not operate by any of these tenets. Principles of the French system, such as the assumption of guilt or the legality of indefinite periods of incarceration, violate the American and British standards of justice. Furthermore, the many violations by modern democracies of their own rule of law principles justify the questioning of its absolute validity.

The Rule of Law: Common Definitions

Still, the adoption and practice of basic principles of the rule of law are clear barometers for any democracy. Apparent contradictions in principle or practice do not negate the rule of law's overall importance. The awful consequences of the breakdown of the rule of law in dictatorships, as recounted above, make its importance self-evident. In democratic societies, deviations from the principles of the rule of law, such as slavery and systematic discrimination in the United States, or the unequal treatment of women historically, serve as powerful arguments for the fulfillment of those principles.

Thus, while there is no set definition of the rule of law encompassing all its practices, there is a basic realm of common principles. The scholar Rachel Kleinfeld Belton identifies five:

  1. a government bound by and ruled by law;
  2. equality before the law;
  3. the establishment of law and order;
  4. the efficient and predictable application of justice; and
  5. the protection of human rights.

One might add that the Western concept of the rule of law should also include the separation of religion and state as a basic constitutional principle, since the influence of both state and religious institutions in the application of the law could lead to arbitrary interpretations. Even in Western countries with a strong religious presence, the policies of organized religion are separate from those of the government.

Institutions of the Rule of Law

Belton also identifies a second definition for the rule of law, namely one based on the institutions or instruments by which the ends of rule of law are achieved. These include:

  1. the existence of comprehensive laws or a constitution based on popular consent;
  2. a functioning judicial system;
  3. established law enforcement agencies with well-trained officers.

Absent any of these features, the rule of law may arguably break down. A constitution without legitimacy will not be respected by the people, and thus its principles cannot be upheld. If there is no constitutional check on the misuse of power, a corrupt judiciary or police force can manipulate the laws to their advantage, incompetent lawyers cannot adequately represent their clients, and so on. The Watergate scandal of the early 1970s—when former president Richard Nixon tried to cover up his administration's involvement in illegal activities aimed to ensure his reelection—illustrates how the institutions of the rule of law act together to protect its principles. The media and public, exercising their right to free speech, uncovered and publicized the Republican administration's illegal activities. Through the U.S. Supreme Court's decision United States v. Nixon (1974), which stated that executive privilege was not absolute and that Nixon was required to release his tapes, the Supreme Court enforced Congress's authority to investigate "high crimes and misdemeanors." The House of Representatives, in turn, impeached the president for breaking the law and violating his oath of office. These actions forced Nixon to resign, which was the first time a president had done so in U.S. history. In this way, a president who sought to act outside of the law to aggrandize political power was prevented from doing so.



Thurgood Marshall and James Nabrit after the Brown v. Board of Education decision

The Will of the Society

Belton notes another factor necessary to achieve the rule of law, namely the will of society to enforce basic principles of equality, fairness, and justice. During the height of the British Empire in the late 19th and early 20th centuries, rule of law principles did not apply in its colonies, where democratic rights were trampled. In the United States, the period of slavery (which was ended countrywide by the 13th Amendment to the Constitution in 1865) is perhaps the most flagrant example within a democratic society of the breakdown of the rule of law. Even after the emancipation of slaves, the adoption of Jim Crow laws throughout the South and U.S. Supreme Court rulings turned the 14th Amendment, which guarantees equal treatment under the law, on its head. An example of a Supreme Court ruling that upheld segregation is Plessy v. Ferguson (1896), which supported the legality of segregation, provided that facilities were separate but equal. Today, it is almost incomprehensible that the American system of democracy supported such terrible contradictions, which condoned the majority's abuse of a minority. Yet it was through the rule of law that African Americans were able to slowly win back their rights. In 1946, the U.S. Supreme Court asserted that segregation during interstate travel was unconstitutional, giving rise to the Freedom Rides, where activists tested this assertion through bus rides throughout the South. The Supreme Court later overturned the legality of "separate but equal" conditions with the decision Brown v. Board of Education (1954), which ruled that racial segregation in public schools was unconstitutional. These two decisions helped to convince American society to end racial segregation and the systematic mistreatment of African Americans through the enactment of sweeping civil rights legislation beginning in the 1960s. The will of society, in this instance, was essential in the establishment of basic rule of law standards.

Yet it was through the rule of law that African Americans were able to slowly win back their
rights.

International Rule of Law

Following World War II, the Nuremberg and Tokyo war crimes trials and the adoption of the 1948 United Nations Universal Declaration of Human Rights and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide established international principles of the rule of law, most importantly that no government is above the universal laws of nations, and that the international community may act to prevent and respond to acts of genocide. But no international judicial institutions were established to ensure that states would adhere to these international principles. Consequently, ethnic cleansing and genocide have continued to take place, eliciting either no action or a delayed reaction from members of the international community to try to prevent further killing (most recently in the Balkans, Rwanda, and now the Darfur region of Sudan, among others). However, starting in the mid-1990s, the United Nations set up courts in the former Yugoslavia and in Rwanda to investigate and prosecute war crimes and crimes against humanity with the aim of preventing similar atrocities from occurring elsewhere. In 1988, the International Criminal Court (ICC) was established to prosecute genocide, war crimes, and crimes against humanity, and applies to abuses occurring after July 1, 2002, in situations where national judicial systems do not or cannot assume the case. The innovation of the ICC is that it has the power to prosecute individuals who commit abuses in a signatory state or who are citizens of a signatory state; the United States, however, has not participated in the ICC. More recently, mixed or hybrid tribunals, established through the joint efforts of the United Nations and national governments, have been established in East Timor, Kosovo, and Sierra Leone. Finally, in some countries, such as Iraq, the prosecution of crimes against humanity has been domestic. It is open for debate whether domestic or even mixed criminal tribunals are successful in establishing consistent principles of an international rule of law.