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 Rule of Lawlessness
Many Crimean Tatars, a small Muslim group that settled on the Crimean peninsula originally in the 14th century, had loyally joined the Red Army in the Soviet Union's battle against Nazi Germany. Yet, during the course of World War II, Soviet leader Joseph Stalin began to question the Tatars' loyalty as an entire community because a very few had collaborated with the Nazi occupation. After the Soviet Red Army retook the Crimean peninsula in 1944, Stalin ordered the summary deportation of the entire Crimean Tatar population to Central Asia without any legal proceeding or process.
"We Are All Equal."
On May 18, 1944, the Soviet secret police (at the time known as the NKVD) began rounding up Crimean Tatars and deporting them by train to Uzbekistan and Kazakhstan. Within three days, approximately 238,500 Tatars had been exiled. A third to half of those forced from their homes to live in Central Asia died from hunger, exposure, and disease. Using the same pretext, Stalin's regime undertook similar actions against other small ethnic groups in the Caucasus in an attempt to rid the region of its historical minority communities.
The ethnic cleansings that occurred under Stalin are an example of the consequences of unchecked power. Overall, Stalin was responsible for the deaths of tens of millions of people throughforced collectivization, ethnic cleansing, mass imprisonment, penal labor, and executions. The Soviet regime is itself an example of the ultimate breakdown of the rule of law, namely the rule of lawlessness.
Rule of Law: A Necessary Accompaniment for Democracy
The use of arbitrary power is anathema to the rule of law. In democracies, constitutional limits on power require the subjugation of state authority to a country's laws as established through popular consent and adopted by the people’s representatives as determined in free elections. This is the meaning of the oft- cited phrase "a government of laws, and not of men" (it was originally used in the Constitution of Massachusetts, quoted above, drafted by John Adams). Under such a system, the rule of 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. And just as the rule of law protects the majority from arbitrary power and tyranny, it must also protect the minority from arbitrary power and the "tyranny of the majority" (see also "Majority Rule/Minority Rights").
The use of arbitrary power is anathema to the rule of law. In democ-racies, constitutional limits on power require the subjugation of state authority to a country’s laws as established through popular consent. This is the meaning of the phrase, “a government of laws, not of men.”
Without the rule of law, there is likely to be either a dictatorship or mob rule. Some revolutionary thinkers have extolled mob rule, or anarchism, as the highest form of political and social justice. In reality, mob rule has meant violence and political chaos; indeed, it creates the very conditions that give rise to dictatorship, the exercise of arbitrary power, and the wholesale 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). 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 basic principles of "innocent until proven guilty," the right not to incriminate oneself of a crime, and the right to be tried by a jury of one's peers are so deeply ingrained in the fabric of American and British 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. The French legal system has the presumption of guilt over innocence and allows indefinite periods of incarceration. These practices violate American and British standards of justice but do not negate the claim that France also operates by the rule of law.
The Rule of Law: Common Definitions
Still, the adoption and practice of some basic principles of the rule of law are clear barometers for the practice of democracy. While there is no set definition of the rule of law encompassing all of its characteristics, there is a basic realm of common principles. The scholar Rachel Kleinfeld Belton identified 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.
These principles are common sense. A government that is not bound by its own laws is by definition lawless. Without equality before the law, the rule of law has meaning only for the few. Without political or social order, the law cannot be applied. Slow and arbitrary application of the law means a breakdown of rule of law. If the law is neither efficient nor predictable no one can trust its application nor abide by its rules. The essential principle that the rule of law must protect human rights was not always accepted, but has become an obvious precondition for any democracy that establishes human rights as a foundation for its constitutional principles. One might add that in a democracy, the Western concept of the rule of law should also include the separation of religion and state as a basic constitutional principle, since no specific religious institution should establish general law for the entire community.
Apparent contradictions in principle or practice do not negate the rule of law’s essential importance. The awful consequences of the breakdown of the rule of law in dictatorships, as recounted above and in innumerable other historical circumstances, make self-evident the importance of adhering to the rule of law. In democratic societies, deviations from the principles of the rule of law, such as slavery, systematic discrimination, or the unequal treatment of women, serve as powerful arguments in favor of the fulfillment of those principles rather than as legitimate justifications for invalidating them.
Institutions of the Rule of Law
Belton also identifies the necessary institutions of the rule of law. These include:
1. a set of comprehensive laws or a constitution based on popular consent;
2. a functioning judicial system; and
3. established law enforcement agencies with well-trained, professional 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 the involvement of his administration 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 Nixon administration's illegal activities. The U.S. Supreme Court, in its decision in United States v. Nixon (1974), established that executive privilege was not absolute and that Nixon was required to release tapes he made of conversations in the Oval Office. In this ruling, the Supreme Court was also enforcing 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, the first time a president had done so in U.S. history. These democratic institutions acted to ensure that even the president was not above the law. This principle will certainly be put to the test again.
The Will of the Society
Another factor is necessary to achieve the rule of law, namely the will of society to enforce basic principles of equality, fairness, and justice when these are not enforced by the courts or other institutions of law and are violated in the practices of the state or citizenry. The British abolitionist movement, for example, brought an end to the British slave trade in the early 19th century. Indeed, it caused the British government to take military action to end the slave trading internationally, at high cost of British lives. (Such action, and the general introduction of an Anglo-Saxon court system within its colonies, did not prevent the British Empire from generally trampling the democratic rights of the indigenous inhabitants in many countries. It would be more than a century later before the United Kingdom granted independence to most of its colonies.)
Thurgood Marshall (center) after the Brown v. Board of Education decision in 1954, the most sweeping of the Supreme Court’s renunciation of the previous “separate but equal” doctrine that had permitted systematic discrimination of African Americans.
In the United States, the periods of slavery and segregation are perhaps the most flagrant example within a democratic society of the breakdown of the principle of the rule of law. Federal and state Constitutions and democratic institutions at both levels upheld this nation’s “peculiar institution” — the barbaric practice of slavery. It was only through prolonged political struggle and ultimately the prosecution of a bloody civil war that the nation’s foundational principle as set forth in the Declaration of Independence — that “all men are created equal” — was incorporated in the US Constitution through the 13th, 14th, and 15th Amendments. Even after the Civil War and Reconstruction, the US Supreme Court repeatedly ruled to protect Jim Crow laws that were enacted in the South (and other laws in the North) that imposed a system of discrimination and segregation for black Americans. These laws and Supreme Court rulings turned the 14th Amendment’s guarantee of equal treatment before the law on its head. Yet it was precisely through a commitment to the rule of law that African Americans were able to slowly win back their rights. The sustained efforts to challenge legal segregation in the courts (most persistently by Thurgood Marshall) resulted in a series of US Supreme Court rulings that declared all previous Court doctrines protecting racial segregation and discrimination unconstitutional. In the end, it was the dramatic struggle of the Civil Rights Movement beginning in the 1950s that helped to convince American society to put an end to legal segregation and the systematic denial of equal rights for African Americans. Sweeping civil rights legislation was enacted in the 1960s to put an end to this legal wrong. The Supreme Court decisions and civil rights laws reflected evolving standards within society in favor of equal rights. Even so, of course, equality remains elusive more than 50 years after their enactment. There continue to be many examples not only for African Americans but also other minorities where the principles of the rule of law outlined above are still betrayed. New civic and legal actions are attempting to re-engage “the will of society” in favor of greater equality for all Americans.
Yet it was precisely through a commitment to the rule of law that African Americans were able to slowly win back their rights.
International Rule of Law
In response to the gross lawlessness and violations of human rights perpetrated by Nazi Germany and other Axis powers, after their defeat in World War II a new international system of the rule of law began to be established. The first precedent was set through the ad hoc Nuremberg and Tokyo war crimes trials; the second was established through the adoption in 1948 of the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide by the United Nations. Most importantly, these precedents held 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 and violations of sovereignty. They also established that individuals responsible for violating basic international standards of human rights should be held accountable for their actions.
At the time, however, there were no permanent international judicial institutions to ensure that states would adhere to these international principles. This task was left to the UN General Assembly and Security Council, whose ability to act was stymied by conflicting ideologies and interests among UN members. Consequently, ethnic cleansing and genocide continued to occur without an effective international response to end the killing. Horrific crimes have occurred, most recently, in the former Yugoslavia, Rwanda, Syria (see Country Study), and the Darfur region of Sudan (see Country Study), among other places. In the mid-1990s, the United Nations established courts to prosecute war crimes and crimes against humanity in the former Yugoslavia and Rwanda with the aim of preventing similar atrocities from occurring again. The Rome Convention established the International Criminal Court (ICC) in 2002 to prosecute individuals accused of genocide, war crimes, and crimes against humanity. It is not formally part of the UN and its jurisdiction applies to cases occurring after its adoption in situations where national judicial systems do not or cannot assume jurisdiction. The innovation of the ICC is that it has the power to prosecute individuals who commit abuses within a signatory state (see, for example Country Studies of Sudan and Kenya). More recently, mixed or hybrid tribunals, established through the joint efforts of the United Nations and national governments, have been established in Cambodia, East Timor, Kosovo, and Sierra Leone. In some countries, such as Guatemala and Iraq, the prosecution of crimes against humanity has been conducted through domestic courts. It is open to debate whether or not domestic or even mixed criminal tribunals are more successful than the International Criminal Court in establishing consistent principles for an international rule of law. The trend towards pursuing such cases in both forums, however, is clear. In both venues, it is hoped that through such institutions the rule of law may be clearly applied so that the type of lawlessness represented by Stalin’s Soviet Union described at the beginning of this section or that represented by the more recent cases listed above may be deterred and that violators of basic international standards are brought to justice.