rule of law

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Rule of Law

Rule according to law; rule under law; or rule according to a higher law.

The rule of law is an ambiguous term that can mean different things in different contexts. In one context the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context the term means rule under law. No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems.

Rule According to Law

The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles. A distinction is sometimes drawn between power, will, and force, on the one hand, and law, on the other. When a government official acts pursuant to an express provision of a written law, he acts within the rule of law. But when a government official acts without the imprimatur of any law, he or she does so by the sheer force of personal will and power.

Under the rule of law, no person may be prosecuted for an act that is not punishable by law. When the government seeks to punish someone for an offense that was not deemed criminal at the time it was committed, the rule of law is violated because the government exceeds its legal authority to punish. The rule of law requires that government impose liability only insofar as the law will allow. Government exceeds its authority when a person is held to answer for an act that was legally permissible at the outset but was retroactively made illegal. This principle is reflected by the prohibition against Ex Post Facto Laws in the U.S. Constitution.

For similar reasons, the rule of law is abridged when the government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government official, the less they are based on law.

For example, the due process clause of the Fifth and Fourteenth Amendments requires that statutory provisions be sufficiently definite to prevent Arbitrary or discriminatory enforcement by a prosecutor. Government officials must not be given unfettered discretion to prosecute individuals for violating a law that is so vague or of such broad applicability that evenhanded administration is not possible. Thus, a Florida law that prohibited Vagrancy was held void for vagueness because it was so generally worded that it encouraged erratic prosecutions and made possible the punishment of normally innocuous behavior (Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 [1972]).

Well-established and clearly defined laws allow individuals, businesses, and other entities to govern their behavior accordingly (United States v. E.C. Investments, Inc., 77 F. 3d 327 [9th Cir. 1996]). Before the government may impose civil or criminal liability, a law must be written with sufficient precision and clarity that a person of ordinary intelligence will know that certain conduct is forbidden. When a court is asked to shut down a paint factory that is emitting pollutants at an illegal rate, for example, the rule of law requires the government to demonstrate that the factory owner failed to operate the business in accordance with publicly known environmental standards.

Rule Under Law

The rule of law also requires the government to exercise its authority under the law. This requirement is sometimes explained with the phrase "no one is above the law." During the seventeenth century, however, the English monarch was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Commons and ignore rulings made by the House of Lords. In the eighteenth century, absolute sovereignty was transferred from the British monarchy to Parliament, an event that was not lost on the colonists who precipitated the American Revolution and created the U.S. Constitution.

Under the Constitution, no single branch of government in the United States is given unlimited power. The authority granted to one branch of government is limited by the authority granted to the coordinate branches and by the Bill of Rights, federal statutory provisions, and historical practice. The power of any single branch of government is similarly restrained at the state level.

During his second term, President richard m. nixon tried to place the Executive Branch of the federal government beyond the reach of legal process. When served with a subpoena ordering him to produce a series of tapes that were anticipated to link him to the Watergate conspiracy and cover-up, Nixon refused to comply, asserting that the confidentiality of these tapes was protected from disclosure by an absolute and unqualified Executive Privilege. In united states v. nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Supreme Court disagreed, compelling the president to hand over the tapes because the Constitution forbids any branch of government from unilaterally thwarting the legitimate ends of a criminal investigation.

Members of the state and federal judiciary face a slightly different problem when it comes to the rule of law. Each day judges are asked to interpret and apply legal principles that defy clear exposition. Terms like "due process," "reasonable care," and "undue influence" are not self-defining. Nor do judges always agree about how these terms should be defined, interpreted, or applied. When judges issue controversial decisions, they are often accused of deciding cases in accordance with their own personal beliefs, be they political, religious, or philosophical, rather than in accordance with the law.

Scholars have spent centuries examining this issue. Some believe that because the law is written in such indefinite and ambiguous terms, all judicial decisions will inevitably reflect the personal predilections of the presiding judge. Other scholars assert that most laws can be interpreted in a neutral, objective, and apolitical fashion even though all judges may not agree on the appropriate interpretation. In either case the rule of law is better served when judges keep an open mind to alternative readings of constitutional, statutory, and common-law principles. Otherwise, courts run the risk of prejudging certain cases in light of their own personal philosophy.

Rule According to Higher Law

A conundrum is presented when the government acts in strict accordance with well-established and clearly defined legal rules and still produces a result that many observers consider unfair or unjust. Before the Civil War, for example, African Americans were systematically deprived of their freedom by carefully written codes that prescribed the rules and regulations between master and slave. Even though these slave codes were often detailed, unambiguous, and made known to the public, government enforcement of them produced negative results.

Do such repugnant laws comport with the rule of law? The answer to this question depends on when and where it is asked. In some countries the political leaders assert that the rule of law has no substantive content. These leaders argue that a government may deprive its citizens of fundamental liberties so long as it does so pursuant to a duly enacted law. At the Nuremberg Trials, some of the political, military, and industrial leaders of Nazi Germany unsuccessfully advanced this argument as a defense to Allied charges that they had committed abominable crimes against European Jews and other minorities during World War II.

In other countries the political leaders assert that all written laws must conform with universal principles of morality, fairness, and justice. These leaders argue that as a necessary corollary to the axiom that "no one is above the law," the rule of law requires that the government treat all persons equally under the law. Yet the right to equal treatment is eviscerated when the government categorically denies a minimal level of respect, dignity, and autonomy to a single class of individuals. These unwritten principles of equality, autonomy, dignity, and respect are said to transcend ordinary written laws that are enacted by government. Sometimes known as Natural Law or higher law theory, such unwritten and universal principles were invoked by the Allied powers during the Nuremberg trials to overcome the defense asserted by the Nazi leaders.

The rule of law is a concept explain in classical time. In Greece Aristotle wrote that "law should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign in only those matters which law is unable, owing to the difficulty of framing general rules for all contingencies." In ancient Rome the Corpus Juris Civilis established a complex body of procedural and substantive rules, reflecting a strong commitment to the belief that law, not the arbitrary will of an emperor, is the appropriate vehicle for dispute resolution. In 1215 Magna Charta reined in the corrupt and whimsical rule of King John by declaring that government should not proceed except in accordance with the law of the land.

During the thirteenth century, Thomas Aquinas argued that the rule of law represents the natural order of God as ascertained through divine inspiration and human reason. In the seventeenth century, the English jurist Sir Edward Coke asserted that the "king ought to be under no man, but under God and the law." With regard to the legislative power in England, Coke said that "when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it, and adjudge such act to be void." In the United States, Alexander Hamilton applied the rule of law to the judiciary when he argued in The Federalist, no. 78, that judges "have neither Force nor Will, but merely judgment."

Despite its ancient history, the rule of law was not celebrated in all quarters. The nineteenth-century English philosopher Jeremy Bentham described the rule of law as "nonsense on stilts." The twentieth century saw its share of political leaders who oppressed persons or groups without warning or reason, governing as if no such thing as the rule of law existed. For many people around the world, the rule of law is essential to freedom.

Further readings

Cass, Ronald A. 2001. The Rule of Law in America. Baltimore: Johns Hopkins Univ. Press.

Hamilton, Alexander, James Madison, and John Jay. 1787–88. The Federalist Papers. Reprint, edited by Gary Wills, New York: Bantam Books, 1988.

Komesar, Neil K. 2001. Law's Limits: The Rule of Law and the Supply and Demand of Rights. New York: Cambridge Univ. Press.

Michener, Roger, ed. 1995. The Balance of Freedom: Political Economy, Law, and Learning. New York: Paragon House.

Pilon, Roger. 2000. The Rule of Law in the Wake of Clinton. Washington, D.C.: Cato Institute.

Scalia, Antonin. 1989. "The Rule of Law as a Law of Rules." University of Chicago Law Review 56.

Sirica, John. J. 1979. To Set the Record Straight: The Break-In, the Tapes, the Conspirators, the Pardon. New York: Norton.

Smith, Steven. 1995. "Nonsense and Natural Law." Southern California Interdisciplinary Law Journal 4.

Stoner, James. 1992. Common Law and Liberal Theory. Lawrence: Univ. Press of Kansas.

Wood, Diane P. 2003. "The Rule of Law in Times of Stress." University of Chicago Law Review 70.


Discretion in Decision Making; Due Process of Law; Judicial Review; Jurisprudence; Moral Law; Nuremberg Trials; Rule in Shelley's Case; Stare Decisis.

rule of law

everyone acts under the law. A phrase as old as Aristotle, it has a special meaning in the constitutional law of the UK and in relation to discussions of law and politics everywhere. Perhaps the most practically useful sense in which the doctrine is applied is to demand that the executive must be acting under the law. But even then this authority need not be explicit in a state where everyone is free to do anything unless it is prohibited. In another sense it reflects the view that there is a higher law than that of the government. In the UK no Parliament can bind its successor, and it is difficult to see the doctrine operating in this sense, although the supremacy of the law of the EUROPEAN UNION has given such a view renewed prominence. The significance of the doctrine in modern times is probably because of the writings of Dicey, who considered that the rule of law involved three issues:
  1. (1) the absence of arbitrary power;
  2. (2) equality before the law; and
  3. (3) liberties and constitutional law generally are the result of law and law made in the courts.

The phrase still has a rhetorical significance, but it is arguable that its technical significance has been overshadowed by the notion of fundamental law or HUMAN RIGHTS.

RULE OF LAW. Rules of law are general maxims, formed by the courts, who having observed what is common to many particular cases, announce this conformity by a maxim, which is called a rule; because in doubtful and unforeseen cases, it is a rule for their decision; it embraces particular cases within general principles. Toull. Tit. prel. n. 17; 1 Bl. Com. 44; Domat, liv. prel. t. 1, s. 1 Ram on Judgm. 30; 3 Barn. & Adol. 34; 2 Russ. R. 216, 580, 581; 4 Russ. R. 305; 10 Price's R. 218, 219, 228; 1 Barn. & Cr. 86; 7 Bing. R. 280; 1 Ld. Raym. 728; 5 T. R. 5; 4 M. & S. 348. See Maxim.

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