12. THE RULE OF LAW
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
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
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
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 governments 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
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
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 governments 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 ones 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
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