The objective of the rule of law is to establish a formal judicial framework to replace natural law. Natural law is based on the right of might: on power. The rule of law is based on human rights: on reason and ethics. Natural law is arbitrary and capricious: it reflects the fleeting whims of the mighty. The rule of law is clear, and predictable. Natural law benefits the privileged few. The rule of law is fair and impartial: it applies equally to everyone. In summary, natural law is unjust. The rule of law enables a well-functioning system of justice.

The creation of the rule of law is perhaps our supreme achievement as humans. It is an evolutionary event. It redefines us as a species that will not stand by and ignore the suffering of others, both of other people and also of other species.

The rule of law is also essential to preserve freedom. The basic limit on personal freedom in a society is what the law forbids. In the worst societies, in dictatorships, the law forbids all independent action. But even in less repressive societies, what is against the law, and how this is enforced, is often unclear. This creates an uncertainty about what we can and cannot do, which in and of itself limits our freedom.

The rule of law is the direct responsibility of government. Further, it is a pillar of democracy. If the legal system, including regulation of other social institutions, does not function properly, the society will fail. To accomplish this, the government must be free of corruption, and also flexible and adaptable, to confront new threats as they arise.

Democratic governments generally have a two or three-branch structure, to create; apply; and interpret and enforce the legal system. For the first, in parliamentary democracies, this includes a popularly elected legislature (Parliament), from which the Cabinet and a Prime Minister are drawn, and the courts. While the executive, the PM and Cabinet, are in a sense separate from Parliament, they are also dependent on it as they may be removed from office, through a vote of no confidence.

For the second, presidential democracy, this includes a popularly elected legislature; a popularly elected executive (the President), who appoints a cabinet and who can only be removed from office, during his or her term, by impeachment; and the courts.

The United States is an example of the three-branch structure. The Congress drafts new laws (legislation). These are then subject to approval by the President. In addition, as the Executive, the President directs the government’s various departments and agencies to implement the new laws. If there are subsequently disputes about the precise meanings of the laws, or how they are being implemented, this is resolved by the courts, through judicial interpretation.

There are different types of laws. Many countries have a basic document, on which the entire legal system is founded, called the constitution or charter. This constitution generally includes enabling law, which establishes the institutions of government (the different branches) and also governs their interrelationships, as well as provisions to protect human rights. As such, it both defines, and limits, government power.

The constitution and other legislation also establish other forms of law. While there are wide variations from country-to-country, a basic distinction is between public and private. Public law governs the relationships between individuals, both real people and institutional entities such as corporations, and the state. It includes constitutional law, as well as administrative law and criminal law. Administrative law covers the behavior of government agencies, and also civil procedure, which allows parties, both individuals and institutions, to seek legal remedies over different types of disputes (in other words, through “civil actions”: lawsuits). Criminal law in turn expressly forbids certain types of behavior, using the threat of severe punishment. It also covers the rights of individuals who are so accused.

Private law defines the relationships between individuals (again extending to institutional entities), including such things as contracts, property law, corporate and commercial law, and other types of disputes (which are known as torts). In addition, all of the above constitute domestic law, and there is international law as well, to govern the international relations between nations and also other types of parties.

As suggested, for criminal law and also certain types of civil actions the legal system has a variety of enforcement and punishment mechanisms. These include the police and government regulators, to apprehend parties who break the law; courts, to confirm and sentence their guilt; and both fines and prisons, as the means of punishment.

As writer Robert Hinkley has observed, one assumption of the legal system is that laws can be passed to restrict unethical behavior before the damage from the behavior becomes too great. While historically this might have been true, it no longer holds. The behavior of corporations, coupled with government’s general unwillingness to regulate them, has created challenges that the legal system at present appears unable to meet.

Conversely, a basic principle is to have as few laws as possible. The reason for this is that a surfeit of laws enables abuse. For example, the legal systems of many countries are so complicated that they have laws that both overlap and conflict. This gives the police and the courts discretion over which laws to enforce and on whom. The wealthy are able to use bribes to receive favorable interpretations, while the poor are subjected to harsh, uncompromising treatment.

Such abuse occurs both in developing countries, where a common joke is that the jails have back doors, for people who are able to pay to be released, and developed. For the latter, one example of abuse is the explosion of suburban sprawl. Property developers in effect bribe local township officials to grant them zoning variances to permit large construction projects, even though a majority of the current residents oppose the projects. The developers promise new tax revenues, a portion of which then flows to the officials in the form of higher compensation.

In modern society, corruption is the greatest threat. This is because when government is corrupted, there is no rule of law. Equal protection is denied, and the wishes of the majority are ignored.

Another core element of the rule of law is the protection of individual rights, including the rights of criminal defendants.

The basic right of a defendant is to be presumed innocent. The government must prove that you are guilty. Without such a burden of proof, law again becomes arbitrary and capricious. Following this, defendants have habeas corpus rights. These include the right to challenge the legality of one’s detention, to examine all government evidence, and to bar coerced evidence (testimony that the government obtained using police abuse and torture). Other defendant rights include:

- Not to be subject to unreasonable searches and seizures
- Warrants for arrest can only be issued on demonstration of probable cause
- You cannot be compelled to incriminate yourself
- The right to legal counsel
- The right to confront witnesses against you
- The right to a speedy and public trial, and in the district where the crime is presumed to have been committed
- And, that excessive bail shall not be charged

(When grouped together, these rights are known as “due process.”)

In addition, individuals have the right of appeal if found guilty, and shall not be subjected to excessive fines or cruel and unusual punishment. In cases where property is confiscated, reasonable compensation shall be given. And, individuals cannot be charged with “potential” crimes, not yet committed, nor charged under new laws for prior behavior. (The latter are known as ex post facto laws, although they do have a specific form in which they are considered acceptable: provisions granting amnesty.) Related to this, individuals cannot be charged for the same crime after previously having been judged innocent. (This is called double jeopardy.)

Another challenge to the rule of law occurs when governments seek exceptions to these conditions. For instance, in the United States, habeas corpus rights can be suspended if the country is invaded or experiencing rebellion. Any such exceptions are extremely debatable, and they underscore the difficulty of creating a rule of law that is fair and just.

A final issue here concerns the question: law for whom? The legal system pertains to entities that have “legal rights,” or “standing” (the right to initiate a lawsuit). At present, this only covers people, and institutions. But another development with the law is that the rights of other forms of life, and environmental standing, are now being considered.

© Roland O. Watson 2008