Rule of law

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See also Chinese views of the rule of law

The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.

Generalities

Perhaps the most famous exposition of the concept of rule of law was laid down by Albert Venn Dicey in his Law of the Constitution in 1895:

When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. ...
... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.
-- Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.


The rule of law is an ancient ideal of first posited by Plato more than 2,500 years ago as a system of rules inherent in the natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it. The concept of impartial rule of law is found in the Chinese political philosophy of Legalism, but the totalitarian nature of the regime that this produced had a profound effect on Chinese political thought which at least rhetorically emphasized personal moral relations over impersonal legal ones. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft.


Criticism

There have been a number of criticisms of the concept of rule of law. One is that by focusing on the procedures used to create the law, one loses sight of the content and consequences of those laws. Another, which has been advised by critical theorists is that the concept of rule of law is merely a method by which the ruling classes can justify their rule because they are in charge of determining what law gets past or not. Yet another criticism of rule of law focuses on the emphasis that rule of law places against the prevention of arbitrary action. To take a very real example of these objections, if the PRC commences legal action against a political dissident, that action may not arbitrary or made by personal whim and it may be made according exactly to the law, but it still may be objectionable.

In response, it has been argued that even consistent bad laws can be better than no laws at all. To take the example of the political dissident, one can argue with rule of law, the dissident at least has advanced warning of what could happen to him.

See also: law.


References

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