Rule of law
According to Encyclopædia Britannica, it is defined as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power.
[6] John Locke wrote that freedom in society means being subject only to laws written by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions of liberty.
[22] However, these arguments have been challenged and the present consensus is that upholding an abstract concept of the rule of law was not "the predominant consideration" of the Athenian legal system.
"[31][better source needed] In 1215, Archbishop Stephen Langton gathered the Barons in England and restricted the powers of King John and future sovereigns and magistrates under the rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes.
Until 1534, the Church excommunicated people for violations, but after a time Magna Carta was simply replaced by other statutes considered binding upon the king to act according to "process of the law".
[35] Another early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons: Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government ...[36]In 1481, during the reign of Ferdinand II of Aragon, the Constitució de l'Observança was approved by the General Court of Catalonia, establishing the submission of royal power (included its officers) to the laws of the Principality of Catalonia.
[37] In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions "that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.)."
55. a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.
"[43] In 1780, John Adams enshrined this principle in Article VI of the Declaration of Rights in the Constitution of the Commonwealth of Massachusetts:No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.
when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion".
It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions of the familiar type, so far as this is practicable.
Aspects of constitutional frameworks relevant to both the rule of law and public economics include government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive.
Further, the availability of an effective court system in situations of unfair government spending and executive impoundment of previously authorized appropriations is a key element for the success of the rule of law.
[75] The term "rule of law" has been used primarily in the English-speaking countries, and it is not yet fully clarified with regard to such well-established democracies such as Sweden, Denmark, France, Germany, or Japan.
Young people can be important contributors to a culture of lawfulness, and governments can provide educational support that nurtures positive values and attitudes in future generations.
"[82] Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map at right.
In France and Germany the concepts of rule of law (Etat de droit and Rechtsstaat respectively) are analogous to the principles of constitutional supremacy and protection of fundamental rights from public authorities, particularly the legislature.
[89][90] In the United Kingdom the rule of law is a long-standing principle of the way the country is governed, dating from England's Magna Carta in 1215 and the Bill of Rights 1689.
[94] At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals.
James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect."
[112] However, the notwithstanding clause operates to provide a limited "legislative override" of certain fundamental freedoms contained in the Charter, and has been invoked at different times by provincial legislatures.
One study indicates that throughout East Asia, only South Korea, Singapore, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state.
It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights.
[119]: 122–123 Judicial independence further decreased in the Republic of China under Chiang Kai-shek per the Kuomintang's policy of particization (danghua), under which administrative judges were required to have "deep comprehension" of the KMT's principles.
[119]: 123 After China's reform and opening-up, the Communist Party emphasized the rule of law as a basic strategy and method for state management of society.
[124][123] In his writings on socialist rule of law in China, Xi Jinping has emphasized traditional Chinese concepts including people as the root of the state (mingben), "the ideal of no lawsuit" (tianxia wusong), "respecting rite and stressing law" (longli zhongfa), "virtue first, penalty second" (dezhu xingfu), and "promoting virtue and being prudent in punishment" (mingde shenfa).
[127] Japan had centuries of tradition prior to World War II, during which there were laws, but they did not provide a central organizing principle for society, and they did not constrain the powers of government.
In addition, the Council of Europe has developed standards and issued opinions and recommendations which provide well-established guidance to promote and uphold the rule of law.
The paragraph 3 of the preamble of the Statute of the Council of Europe states: "Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy."
[152] It supports emerging economies and middle-income countries to strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity.
