Rule of law
The rule of law entails that the law is clear, consistent and open; individuals and groups have access to justice ; and that government institutions are subject to the law. It entails that all people and institutions within a political body are subject to the same law. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". According to Encyclopædia Britannica, it is "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."
Legal scholars have expanded the basic rule of law concept to encompass, first and foremost, a requirement that laws apply equally to everyone. "Formalists" add that the laws must be stable, accessible and clear. More recently, "substantivists" expand the concept to include rights, such as human rights, and compliance with international law.
Use of the phrase can be traced to 16th-century Britain. In the following century, Scottish theologian Samuel Rutherford employed it in arguing against the divine right of kings. 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. The phrase "rule of law" was further popularized in the 19th century by British jurist A. V. Dicey. However, the principle, if not the phrase itself, was recognized by ancient thinkers. Aristotle wrote: "It is more proper that law should govern than any one of the citizens."
The term rule of law is closely related to constitutionalism as well as Rechtsstaat. It refers to a political situation, not to any specific legal rule. Distinct is the rule of man, where one person or group of persons rule arbitrarily.
History
Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey, development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, Mesopotamia, India, and Rome.Early history (to 15th century)
The earliest conception of rule of law can be traced back to the Indian epics Ramayana and Mahabharata - the earliest versions of which date around to 8th or 9th centuries BC. The Mahabharata deals with the concepts of Dharma, Rajdharma and Dharmaraja. It states in one of its slokas that,"The people should execute a king who does not protect them, but deprives them of their property and assets and who takes no advice or guidance from any one. Such a king is not a king but misfortune."Other sources for the philosophy of rule of law can be traced to the Upanishads which state that, "The law is the king of the kings. No one is higher than the law. Not even the king." Other commentaries include Kautilya's Arthashastra, Manusmriti, Yajnavalkya-Smriti, Brihaspati Smriti.
Ancient Greece
Several scholars have also traced the concept of the rule of law back to 4th-century BC Athens, seeing it either as the dominant value of the Athenian democracy, or as one held in conjunction with the concept of popular sovereignty. 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. Aristotle, in his Politics, wrote: "It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws."The idea of the rule of law can be regarded as a modern iteration of the ideas of ancient Greek philosophers, who argued that the best form of government was rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law. Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state." Similarly, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law:
It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.
The Roman statesman Cicero is often cited as saying, roughly: "We are all servants of the laws in order to be free." During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune, but those with grievances could sue the treasury.
China
In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law," meaning that they placed the aristocrats and emperor above the law. In contrast, the Huang–Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference ... is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion."
England
, Anglo-Saxon king in the 9th century, reformed the law of his kingdom and assembled a law code which he grounded on biblical commandments. He held that the same law had to be applied to all persons, whether rich or poor, friends or enemies. This was likely inspired by Leviticus 19:15: "You shall do no iniquity in judgment. You shall not favor the wretched and you shall not defer to the rich. In righteousness you are to judge your fellow."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. The influence of Magna Carta ebbed and waned across centuries. The weakening of royal power it demonstrated was based more upon the instability presented by contested claims than thoughtful adherence to constitutional principles. 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". Magna Carta's influence is considered greatly diminished by the reign of Henry VI, after the Wars of the Roses. The ideas contained in Magna Carta are widely considered to have influenced the United States Constitution.
The first known use of this English phrase occurred around 1500. 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 ...
Modern period (1500 CE – present)
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 to the laws of the Principality of Catalonia.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."
Among the first modern authors to use the term and give the principle theoretical foundations was Samuel Rutherford in Lex, Rex. The title, Latin for "the law is king", subverts the traditional formulation rex lex. James Harrington wrote in Oceana, drawing principally on Aristotle's Politics, that among forms of government an "Empire of Laws, and not of Men" was preferable to an "Empire of Men, and not of Laws".
John Locke also discussed this issue in his Second Treatise of Government :
The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 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.
The principle was also discussed by Montesquieu in The Spirit of Law. The phrase "rule of law" appears in Samuel Johnson's Dictionary.
In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Paine wrote in his pamphlet Common Sense 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." 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.
The term "rule of law" was popularised by British jurist A. V. Dicey, who viewed the rule of law in common law systems as comprising three principles. First, that government must follow the law that it makes; second, that no one is exempt from the operation of the law and that it applies equally to all; and third, that general rights emerge from particular cases decided by the courts.
The influence of Britain, France and the United States contributed to spreading the principle of the rule of law to other countries around the world.