A philosophical and juridical principle underlying legal systems that holds that power governed by statutes and constitutions is superior to arbitrary power.
The rule of law is an ideal underlying the U.S. political and legal system. It is an attempt to find a basis other than pure power on which government can perform its function of stopping violence without becoming excessively coercive itself. Although many would argue that it should be a feature of any good government, democratic or not, it is absolutely necessary for democratic systems because they need laws to balance contradictory principles such as majority rule and minority rights.
The rule of law cannot be properly defined in a simple sentence, and that may be why it is frequently left undefined. The rule of law can be said to exist as an absence rather than a presence, rather as peace is the absence of war or liberty is the absence of restraint. The rule of law is often referred to by phrases representing its opposites, such as the rule of man, the rule of power, or the rule of discretion. King Louis XIV’s statement, “I am the state,” is an almost perfect expression of the rule of man, or power, or discretion. He was asserting that, as an absolute monarch, he had the power to make the rules as he went along, administer them at his own discretion, and enforce them judicially as he saw fit. His statement is widely recognized as a violation of the rule of law.
American constitutional scholar Edward Corwin offered the contrary view when he opened his 1929 work on constitutional law with the classic line, “The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.” He supported his point by quoting Thomas Paine, “But where some say is the King of America?…Let a crown be placed [upon the law], by which the world may know, that insofar as we approve of monarchy, that in America the law is King.” Corwin thereby emphasized the degree to which the rule of law rather than power figured in the Framers’ conception of sound government.
To take the rule of law beyond the stage of being a mere catch phrase, it is necessary to risk oversimplifying it. This definition of the rule of law, paraphrased from Joseph Raz but distilled from many writers, rests on two broad statements: First, the rule of law must prevail over both the people and the government, and, second, laws should conform to certain characteristics that make them knowable and legitimate.
The rule of law depends on the existence of an effective government to make and enforce laws prohibiting private coercion and thus protecting citizens. Both the government and the people must be under the law. If only the people are under the law, the government is called a tyranny. If only the government is under the law, people live in lawlessness or perhaps anarchy. The rule of law calls on the government to resolve, through its public court system, all serious conflicts that might result in violence. The rule of law prevails where all individuals and all groups essentially recognize and act upon an obligation to comply with law.
The government must be governed by the same laws that bind the ordinary citizen to the degree that this is possible. This concept must be made effective through institutions and processes for example, by use of judicial review over executive actions to ensure that the government is also bound by the law. This is why the laws of totalitarian governments, such as Nazi Germany or Joseph Stalin’s Russia, are not compatible with the rule of law. Even when the rules promulgated in these codes were prospective, clear, general, and predictable as required by the rule of law the citizen could not turn to independent courts to have the law enforced against the government itself. The rulers could ignore the law at their discretion.
An independent judiciary, such as the Supreme Court, is an indispensable requirement of the rule of law. It implies freedom from interference by the president or Congress through either threats or rewards. Judges are bound to enforce the laws, except when an enactment violates a written constitution. Some scholars even define the rule of law as the equivalent of independence of the judiciary. This may be overstating the matter, but it does underscore that independent courts may be even more indispensable than legislatures for the rule of law. If the law and the judiciary become political pawns of the legislative, the executive, or both, they are no longer needed and merely duplicate legislators and their function. Such partisanship is a perversion of law, and it is in disputes with either the president or Congress that judicial independence of the Court matters most.
The Constitution promotes this value by using an indirect method of selection, prohibiting Congress from reducing the salaries
Although the rule of law requires that judges be independent, they must also be bound by law. If there are no limits to judicial power, then the nation runs the risk of becoming a judicial tyranny. The ideal holds that the laws, not judges, are supreme. To paraphrase an old adage, the job of the judge is not to make law but to find it in either long-standing custom or statute and apply it to the factual situation. It is the law that governs, not the judges, whose role is to determine the correct rule to apply to the case. Although actual judges may fail to do this, it remains an ideal for them to pursue. This issue lies behind the ongoing debate over interpreting the Constitution by relying on the plain meaning of the text, original intent, natural law, or other methods of interpretation.
The issue also arises when administrative agencies under the control of either the president or Congress exercise judicial power. Throughout history, such courts have risked tyranny. Such agencies are frequently created precisely because the government does not like the outcomes produced when normal judicial standards of fairness are used. Through administrative boards, military courts, and revolutionary tribunals, authoritarian governments have provided example after example of the damage that can be done when judges lack independence.
For the rule of law to function properly, certain basic notions of justice developed in ancient times must be followed. These rules include an unbiased court, the right of both sides of a case to be heard, and open trials with the possibility of the population in general observing or knowing the procedures and evidence as well as the outcome. The notion that a person is innocent until proven guilty has had long, if not universal approval. All these rules depend on independent tribunals, but the character of the laws is also important. Laws should conform to certain characteristics that make them knowable and legitimate, which means law must have characteristics such as predictability, formality, and equality.
Predictability means that all laws should be made in advance and applied only in the future. This is further recognized in the Constitution’s clear prohibition against ex post facto laws
The rule of law holds that laws must be clearly stated and relatively stable. Besides forbidding retroactive legislation, the concept of predictability condemns the enactment of excessively vague laws that grant discretion (or delegate power) to administrators and judges to deal arbitrarily with citizens. Examples of this kind of law abound in authoritarian regimes. The Nazi government had laws that proscribed “acts deserving of punishment…according to the healthy instincts of the race.” The Soviet Union had criminal laws prohibiting all “socially dangerous acts” and the Imperial Chinese government had a legal category of “things that ought not be done.” Sometimes the most severe penalties were meted out for those who violated outrageously vague laws.
Vague laws are in effect retroactive legislation because they do not allow citizens to really know what the law prohibits until they have taken certain actions and are convicted of a crime. Of course, the knowledge that vague law governs a certain general area of behavior may lead careful citizens to avoid taking any action that might conceivably fall within the bounds of the vague law. However, this is equally bad from the point of view of citizens because they are stifled in their activities by a government that does not recognize its limits. In a sense, it may be better to have a “bad” law that is specific than to have a vague law. At least, a specifically worded bad law invites repeal or opposition from the citizenry. A vague law merely confuses.
In principle, the Supreme Court recognizes the importance of this ideal, for it has in the past struck down some statutes as being unconstitutionally vague or “void for vagueness.” However, Congress passed a great deal of vague legislation that the Court has not yet declared unconstitutional, particularly Congress’s vague delegations of legislative power to executive branch bureaucracies.
Predictability implies that the laws are not changed too frequently nor that there be too many of them. No one can arbitrarily set a limit on how long any single law can stay in effect nor on how many total laws should be permitted, but the goal of a relatively small number of stable laws is still an important element of the certainty concept. The object is to limit government and create a predictable and reliable justice system. All law should have an educational function aimed at affecting behavior. It can hardly have this function if the law is secret, vague, flexible, or unstable.
Formality requires that while laws should be specific about what behavior they prohibit, they should not apply only to specifically named individuals. No law should be passed that punishes or benefits any person by name. Unless the law is specific in terms of behavior but general in its application to people, such a law allows government to be outrageously arbitrary in its behavior. The treatment of the individuals named in the law is obviously unequal with the other unnamed citizens.
Formal laws are required because informal laws are too vague and constitute government by ad hoc actions. Citizens cannot evaluate their conduct by law if what is called “law” is an ad hoc application of the coercive power of government officials. Formality is the assumption underlying the ancient legal maxim that there should be no penalty without a law. It also has an observable correlation with progressiveness and prosperity. Traditional governments, which govern by custom alone and frequently create castes or unequal race and gender rankings, have laws that lack this quality of formality. Such societies, including those male-dominated societies that discriminate against women, are among the most judicially backward in the world.
Recognition of the value of formality can be found in the prohibitions against bills of attainder
Equality is a corollary of the concept of formality. Ideally, it should restrain legislative bodies from passing narrow statutes that give undue advantage to special interests groups or powerful individuals. This is particularly critical for the federal government as it becomes a force in the economy with more extensive government-funded projects, entitlement programs, and redistributive economic benefits. Governmental respect for equality helps build legitimacy and public acceptance of programs because it satisfies the citizenry that they are being treated equally.
Equality before the law cannot be an absolute principle, for people can be treated as equal only according to appropriate criteria. To treat people in relatively different positions equally is as arbitrary as treating equally placed people differently. What is appropriate and when depends on circumstances that may be outside the definition of the rule of law. All laws discriminate in one way or another, but discrimination
Although the principles of equality, formality, and predictability are opposed to ad hoc government behavior, they are nevertheless relative concepts in the legal context. Predictability must be balanced against some flexibility, and perfect predictability would mean complete stagnation. The concepts underlying the rule of law ideally restrict governmental power over individual citizens without impeding the government’s necessary legal process.
It would perhaps be more convenient if the requirements of the rule of law could be made to depend on the government and its officials alone because this would limit the number of individuals who need to be persuaded of the need for the ideal. However, the real durability of the rule of law depends not simply on the efforts of legislators, enforcement officials, or judges, but also on broad support from the general citizenry. Nowhere does this become clearer than when one examines societies without a history of the rule of law. Creation and maintenance of the rule of law is an ongoing process requiring considerable vigilance.
This definition of the rule of law incorporates a number of apparently contradictory values. It speaks of the need for certainty and stability in the law so that people will be able to plan and organize their arrangements in accordance with it; it also stresses that the law must retain some flexibility and be capable of adapting to changes in public opinion. It asserts a requirement of generality of application in the law, together with its corollary of equality before the law, but it also cautions that the principle of equality should not apply to cases in which valid distinctions may or should be drawn. Although an essential condition of the rule of law is an independent judiciary, judges must not become too independent, lest the rule of law degenerate into judicial tyranny. The rule of law seeks a workable balance rather than perfection.
For this balance to function, the equal ability of all citizens to participate in the political process is also important. The political vote of each adult citizen should be the same as that of every other. Obviously, Louis XIV’s view would violate this because he alone was above the law and his opportunity to participate in the political process was much greater than anyone else’s. This principle of equality does not seek to normalize all individual variance within a society. It does not extend to height, intelligence, or wealth. This principle says that as long as an equal opportunity exists, it is not necessary that the condition of equality be present for a democratic system to operate.
When the rule of law is defined by these principles, its vital relationship to democratic practices is obvious. Unless the law is generally obeyed, government cannot exist. Unless government officials observe the limits on the use of power, a constitution cannot be created. Without courts that protect basic human rights, neither civil rights nor civil liberties can exist. Without a citizenry that abides by the outcomes of the established, lawful political processes, democracy
Edward S. Corwin’s The Higher Law Background of American Constitutional Law (Ithaca, N.Y.: Cornell University Press, 1929) looks at the rule of law in the Framer’s thought. The Intelligible Constitution (Oxford: Oxford University Press, 1992) examines the role of the rule of law in the formation of the Constitution. Joseph Raz’s, The Authority of Law (Oxford, England: Clarendon, 1979) and Geoffrey De Q. Walker’s The Rule of Law (Melbourne, Australia: Melbourne University Press, 1988) focus on the rule of law and its implications.
German Federal Constitutional Court