Rule of Law: History
The Code of Hammurabi
The earliest written legal code for a government was the Code of Hammurabi, dating from 1750 BC. Hammurabi, the King of Babylon, needed to unite his disparate realm, and decided to establish common rules of conduct, commerce, and devotion to the king under a system overseen by judges. In comparison with contemporary standards, much of the code is severe: many crimes were punishable with death or corporal punishment. Nevertheless, it was remarkable for introducing the ideas that government should be subject to the law; that laws should be based on public rules, not secret or divine ones; and that law should be efficiently and fairly applied by judges. (These are all principles that the scholar Rachel Kleinsfeld Belton mentions as being essential to establishing the rule of law: see Essential Principles.)
The Modern Understanding of Athens
In the area of the rule of law, ancient Athens is best known for its prosecution and execution of the great philosopher Socrates in 399 BC on charges of treason and corrupting the youth of Athens. But this case, usually presented as an example of injustice, masks the contributions of ancient Athens in the development of rule of law principles. In the Athenian system, for example, magistrates and jurors were drawn by lottery from the Assembly, which was composed of all citizens, since it was believed that judgment should be by one's peers. All citizens had the right to bring both private and public matters before the courts. In commercial law, Athens introduced the principle of binding and enforceable contracts among equal citizens. This meant that law, not brute force, determined the resolution of commercial disputes, a principle which helped to make Athens the region's center for trade. Its large juries were a common subject of mockery by critics at the time (they could number as many as 5,000), but overall the Athenian system appears to have worked efficiently and citizens safeguarded this legal system jealously. Judgment by juries composed of peers and the equal access of citizens to courts are just some of the characteristics of Athenian law included in most contemporary justice systems.
Most scholars cite the Roman system as the most important tradition influencing Western law. Roman law was less egalitarian than Athenian law, since its first purpose was to protect aristocratic landholders. Furthermore, the spread of Roman law occurred through empire and military dominance. Yet, the Roman tradition also implanted several basic principles of the rule of law, including the need for public knowledge of civil law and judicial procedures, that the law should be stable and evolve according to precedent and circumstances, and that natural law (the universal rights of man) can provide the basis for positive (man-made) law. The Roman tradition was maintained under the Byzantine Empire and over time was incorporated into much of European law and practice throughout the Holy Roman Empire.
The Anglo-Saxon Tradition
The Magna Carta, signed by King John of England in AD 1215, established one of the most basic concepts of governance, namely that the power of the head of state, the monarch, was limited in relation to his subjects. Among the provisions of the Magna Carta was:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way,
nor will we [the King] proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
The English Bill of Rights recognized the importance of positive rights, which were being asserted by Enlighten-ment thinkers.
The battles between parliament and the Stuart Kings of England led to the adoption of other landmarks in the rule of law. The Petition of Grievances (adopted in 1610), established the right of citizens to petition government to seek redress for abuses of power. The Petition of Right (adopted in 1628) more firmly grounded in law that the monarch could not arbitrarily violate basic civil liberties or raise taxes without parliament’s approval. The Habeas Corpus Act in 1679 formalized and strengthened the existing legal principle that anyone arrested by the king’s authority had the right to be presented to a judge to determine if there was legitimate cause for arrest so that people were not held in secret. (The law ordered "all sheriffs, jailers, and other officers" holding citizens in custody to "yield authority" to all writs of the court, also called “great writs.”)
The Glorious Revolution of 1688, which placed Protestants William of Orange and Mary on the throne, required that they accept the newly adopted English Bill of Rights, which reiterated these basic principles and also formalized other foundations in the Anglo-Saxon constitutional tradition, such as the right to trial by jury and the prohibition against cruel and unusual punishment. The Act of Settlement of 1701 later established Parliament's power to determine succession to the monarchy, effectively abolishing the “divine right of kings.” All of these landmark documents were part of the foundation for the US Constitution and the Bill of Rights.
The Rule of Law as Bulwark Against Government Tyranny
The English Bill of Rights recognized the importance of positive rights, a concept asserted by Enlightenment thinkers. Positive rights refer to a moral obligation that is owed to someone, as opposed to negative rights, which require only the absence of interference. According to many Enlightenment philosophers, these positive rights were natural rights, meaning that all persons were entitled to them and that the state could not violate them. Such rights were an indispensable accompaniment to representative government and were adopted by supporters of both the American and French Revolutions. In addition to the basic principles of rule of law adopted in British practice, the American Bill of Rights expanded constitutional protections to include the right to a fair and speedy trial, the right not to incriminate oneself, the right to confront one's accuser in court, and the right to protection against unwarranted search and seizures. In the US Constitution, these standards of rule of law — encompassed within the phrase "due process"— are considered the main bulwark against any threat of tyranny by the government. Of course, the universal understanding of and full respect for natural rights to include all persons — regardless of race, gender, religion, ethnicity or even property-owning status — took until the 20th century (see below). The concept of universality, however, was an extension of the original assertion of human rights during the Enlightenment.
The Separation of Powers
Who enforces the standards of the rule of law? In modern democracies, the rule of law relies on a judiciary or court system that can act independently of executive and legislative powers and thus rule on the basis of established law and precedent, not arbitrary or politically motivated considerations. In describing the idea of the separation of powers Baron de Montesquieu wrote in Spirit of Laws (1748):
Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative,
the life and liberty of the subject would be exposed to arbitrary control, for the judge would be then the legislator. Were it joined to the
executive power, the judge might behave with all the violence of an oppressor.
Gandhi succeeded in forcing the British government to abide by its own principles.
The independence of the federal judiciary in the United States was established through the "advise and consent" powers of the Senate in approving presidential nominees for federal judges and in the House and Senate's authority to impeach and remove judges from their lifetime appointments for reasons of incompetence or malfeasance. The independence of the judiciary was further strengthened in Marbury v. Madison (1803), decided under Chief Justice John Marshall, which asserted the Supreme Court's power of judicial review, meaning that the Court became the final arbiter of whether or not laws and the government's actions are constitutional.
The Expansion of Rule of Law
The incorporation of the rule of law and the separation of powers in British and US law had a great influence over the next two centuries, first as a result of the expansion of the British Empire, and second as a result of the growing influence of the United States as a world power. Rule of law principles came to symbolize the expansion of rights and liberties around the globe, including in British colonies. More significantly, natural law arguments in favor of due process, human rights, and self-governance became the instruments for many independence and democracy movements worldwide. Mahatma Gandhi is one of the best-known and most successful of the advocates for combining claims of legal rights with civic resistance against unjust laws. Gandhi succeeded in forcing the British government to abide by its own principles. This strategy has attracted many followers. In the United States, followers of Gandhi, such as Bayard Rustin and Martin Luther King Jr., used the instruments of protest and civic resistance, together with legal challenges to unjust laws, to empower African Americans to act against Jim Crow laws and legalized discrimination.
Karl Brandt, a Nazi physician and member of Hitler’s inner circle, being sentenced at the Nuremberg Trials.
The Contraction of Rule of Law
As noted earlier, the rule of tyranny stands in opposition to the rule of law. In dictatorships, the institutions of the rule of law become instruments of oppression. Indeed, dictators recognize the power of law as a foundation for governance and develop their own perverted claims to the rule of law. Nazi Germany and other Fascist states, for instance, imposed legal systems based on the supreme power of the leader and the superiority of one race over all others. Communist regimes superimposed the class struggle over "bourgeois" concepts of human rights for attaining a classless egalitarian society. Constitutions in communist countries frequently “guaranteed” basic human rights but then established the absolute authority of the Communist Party, governed by “democratic centralism,” to decide on all aspects of law and life. Many intellectuals were seduced by the idea of a higher form of justice or morality based on "national" or "socialist" law. In fact, there was no rule of law, only legalistic justifications for the most brutal actions: torture, mass imprisonment and murder, forced labor, ethnic cleansing, and genocide.
Universality of Rule of Law
The defeat of fascism and Nazi Germany propelled the establishment of universal standards of human rights and the rule of law through agreements such as the Universal Declaration of Human Rights (1948), the Convention Against Genocide (1948), the Covenant on Civil and Political Rights (1966), and the Convention Against Torture (1984). The collapse of communism and the Soviet Union in 1989–91, the end of apartheid in South Africa in the early 1990s, and the collapse of military and fascist regimes in Latin America in the 1980s and 1990s further reinforced the rule of law as a universal principle not only of justice but also of governance. (The history of the adoption of these standards is discussed more fully in Human Rights. The adoption of an international court system to apply those standards is discussed in this section’s Essential Principles.)
There is an Islamic tradition of law developed over many centuries that competes with the Western definition of the rule of law based on individual rights. The Islamic system of justice (or Shari’a) involves the application of principles Muslims believe were related to the Prophet Muhammad by Allah (the Arabic word for God) and that they therefore hold as sacred. In many Muslim countries, Islamic or Shari’a courts are complementary or superior to state courts in civil and religious matters or, as in the case of Saudi Arabia, serve as state courts on all matters.
Such courts are presided over by clerics who interpret the Koran for its application in specific instances of claimed injustice or appeals for mediation in civil disputes. Sometimes, such religious courts follow established procedures and act as a mediator within society. Many times, however, Islamic courts or Sharia courts are both extreme and arbitrary, based on originalist interpretations of religious texts (these interpretations vary, there being several schools of Islamic justice). In such cases, Shari’a courts operate outside of the concepts of the rule of law discussed in Essential Principles that stress a government established based on consent of the governed, guarantees of human rights, equal application of the law, and uniformity of expectations, among others. Thus, it must be noted that in Muslim countries where democracy has been established (as well as in some other predominantly Muslim countries), state courts generally supersede religious courts and the latter deal mainly with civil matters (marriage and divorce, inheritance, among others).
Members of the Taliban
In countries such as Iran, Afghanistan under the Taliban, Saudi Arabia, and Sudan, Islamic “justice” is a tool for imposing a harsh dictatorship based on restrictive interpretations of Islamic law and texts. In recent decades, a form of radical Islamism based on Wahhabism or Salafism has spread to other countries and is used as a tool for seeking power or imposing the will of the majority over the minority. Fanatical movements such as al-Qaeda, Boko Haram, and ISIS have arisen seeking to achieve a radical vision of Islam in order to establish a universal theocracy. In this vision, the use of violence against innocent Muslims and non-Muslims alike is justified to fulfill radical Islamist goals (see, for example, the Country Study of Nigeria). Such views have gained strong followings in northern Africa and the Middle East, but are antithetical to any ideas of the rule of law and are contrary to the understanding of Islam for a majority of Muslims.