1.07.2013

The Rule of Law is not Dead, or Even in Danger, Under Contemporary Conditions, for it was Never Alive in the First Place

DEAD OR ALIVE?

How is the existence or non existence of any object demonstrated? We can say something exists when it can be directly observed with our physical senses, or some empirical measures of its effects can be taken. For example, a brick exists because we can see it and feel it. We can also weigh the brick and measure its dimensions.

Can this same logic be used to determine the existence of the Rule of Law (ROL)? Since the ROL, as a concept, is a non physical entity and we cannot observe it directly with our senses, we will attempt to determine its effects, if any, on the world around us. This can only be achieved when we can identify what the ROL is, in such a way that we can also identify its effects on our reality. We must also be aware of the possibility of a metaphysical nature of the ROL. The ROL may possibly exist as a concept in the mind, with symptoms in the physical, as the idealists would claim. Or conversely the materialists would say it is a concept that has arisen into our consciousness, due to humanitys achievement of the material world with technology. Perhaps even, the ROL has a dualist nature to it and that both mental and physical aspects of this phenomenon exist and arose at the same time.

However, we do not look here to determine the state of existence of the ROL, but to any existence whatsoever. It may suffice to say that the ROL exists solely because we are aware of the concept. Nevertheless, we will try to prove the existence of the ROL empirically so as to lift the discussion out of the realm of pure theory.

HISTORICAL EMERGENCE AND MEANING

Roberto Unger identified two schools of thought regarding the ROL. Firstly, that the ROL exists in all societies, and secondly that the ROL exists only in a particular type of modern legal system[1]. Unger identified three typologies of the ROL, namely customary law, as existing in pre-civilised societies, regulatory law, existing in pre-modern societies, and a legal order, existing in liberal democracies. This paper will focus on the ROL as found within states as we are attempting an analysis in contemporary conditions.

Hence we begin with a pre-modern society in which the origins of the ROL are often said to lay. As early as the fourth century B.C.[2], Plato spoke of the idea that if law is the master of the government and the government is its slave, then the situation is full of promise [3] Aristotle, his student, said And the rule of law, it is argued, is preferable to that of any individual.[4] Ever since these initially identifiable origins, the ROL has been debated widely and its content and meaning has been highly contested and redefined. The Magna Carta signed by King John in 1215 includes the phrase the lawful judgement of his peers or/ and by the law of the land[5], demonstrating the idea of supremacy of the law. The English Bill of Rights 1689 further diminished the royal prerogative[6] and therefore limited the abuse of arbitrary power by the Crown, also a main feature in the ROL. Alongside these developments, during the eighteenth century, in continental Europe, the term R echtsstaat was first used to describe a legal and political goal[7], a concept similar though distinct to the ROL. Back in England, A.V. Dicey formulated the ROL in 1885, distinguishing three main characteristics of, the absolute supremacy of the law as opposed to the influence of arbitrary power, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts, and that the constitution is the result of the ordinary law of the land.[8] This initial articulation of the ROL can be seen as the development of the traditional concept to an extent after which all ensuing ROL issues are deemed to be contemporary. Therefore, did the ROL, up to this point in time, exist? Was it ever alive? Developments of the English heritage mentioned above, allow us to see that the ROL, although still in development, indeed was alive and kicking as according to Diceys formulation. The beheading of King Charles I in 1649 demo nstrated the rising power of the parliament and the common law as superior to that of the Crowns arbitrary power. This trend grew further with the Glorious Revolution and the Bill of Rights which followed the fleeing of King James II. The Bill of Rights 1689 finally subjected the Crown to parliament and the supremacy of law. On Diceys point of equality, the change to trial by jury as compared to trial by ordeal or battle, and the rise of the doctrine of precedent with the legal profession show that the a body of consistent laws had developed to apply equally all citizens. It is to be noted that these changes came about over a period of time in conjunction with the emergence of the ROL concept. It cannot be seen that either one begat the other, and demonstrates Diceys third characteristic of the ROL.

The ROL within the two domains of mental and physical can be observed here. The mental shift of attitude of the population to the usage of logic and reason as applied in law, pioneered by Sir Edward Cokes numerous expositions, resulting in a widespread belief of the equality of people. The physical domain is inhabited by the empirical events described, from the beheading of a King to the drafting of the Magna Carta and the Bill of Rights. These trends and events are proof enough that over this period of time, the ROL was not only alive as a concept, but effective in major events as well.

A CONTEMPORANEOUS RULE OF LAW?

Now that the existence of the ROL in the past has been established, can we say that it still exists today, or has it gone the way of the dinosaurs? The world today is a vastly different reality with varied conditions. Western society can be characterised with the emergence of welfare states, and technology among other factors. Statistical methods never before available can be employed to measure the world we live in. Furthermore, especially since colonialisation, the increasing interconnectivity and the phenomenon of globalisation has broadened the scope of the ROL to encompass the world. Here, we will examine if the ROL exists in the contemporary world external to the conceptual domain.

How is the initial difficulty posed, that of measuring the effects of the ROL, to be solved today? Measurable causative effects of the ROL must first be identified. Although this is still a developing area of study, some progress has been made. We look to the identification of thirteen main factors in an index of the ROL[9] by the World Justice Project. These factors correspond to their definition of the ROL, and fall under the following four universal principles:[10]

The government and its officials and agents are accountable under the law;

the laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property;

the process by which the laws are enacted, administered and enforced is accessible, fair and efficient; and

the laws are upheld, and access to justice is provided, by competent, independent, and ethical law enforcement officials, attorneys or representatives, and judges who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

Factors such as the limitation of government power with the use of checks[11], the protection of fundamental rights by the law[12], the process by which laws are enacted, administered and enforced is publicly accessible[13], and the accessibility of justice to the public to not be based on economic or social status[14], are examples of the myriad considerations in determining a ROL index.

Additionally, the ROL index measures adherence to the ROL by examining not only written laws, but how the laws are observed. Also, the index examines formal and relevant informal systems of law, and employs factors based on established international standards[15]. This index is currently a work in progress, and will be applied in up to five countries prior to the World Justice Forum in July 2008.[16] A body of work such as this, although not yet finalised will be able to prove empirically the existence of the ROL in contemporary conditions, across the various countries it is conducted in.

Another method used to measure the ROL in various countries is the usage of indicators on the attractiveness of countries as places for investment.[17] Indicators such as the prevalence of law and order, the capacity of the legal system to enforce contracts, the efficiency of the bureaucracy, the likelihood of government expropriation, and the extent of official corruption depict the state maintenance of property rights and the ROL in countries. Other indicators such as electoral rights and civil liberties are correlated to the ROL.[18] The economic growth rate can also be related to the ROL to reveal a trend.[19] Using such measures, and ensuring their statistical significance, allows further advancements in an understanding of the effects of the ROL. This study by Barro allowed the conclusion that democracy does not seem to have a strong direct role in fostering the rule of law. Thus, one cannot argue that democracy is critical for growth because democracy is a pre-requi site for the rule of law.[20] A finding such as this challenges the traditional pairing of democracy with the ROL, and allows us to observe the ROL as an independently existing phenomenon with its own and separate effects on society.

Yet another non traditional method for measuring the ROL is demonstrated by Lydia Tiede[21], who makes an analysis of the variation of outcomes over similar cases in bankruptcy and criminal sentencing. This study focused on the judicial decision making process and the equality of the ROL outcomes. A wide variation of outcomes was found revealing a disturbing relation to the amount of judicial discretion available. This variation of outcomes was found also to be constrained by regulations limiting discretion.[22] Further, the results obtained in the study point to the ROL as simply the rule of policy as lawmakers can control how much influence judges may have on judicial outcome.[23] Tiede further posed that the equating of the ROL to rule of policy[24] implies that the ROL is not fixed and varies with policy decisions, thus calling into question the extent that the rule of law exists.[25]

Studies and efforts such as the above conclusively demonstrate that we have progressed to a degree where we are beginning to delineate the ROL as its own measurable entity. The ROL can thus plainly be seen to exist not only in the minds of the citizens of the world today but also to impact upon the very real economic and social factors we encounter in our daily lives.

DANGER, DANGER!

With the knowledge that the ROL exists psychically and materially, both in the past and the present, we look to ascertain if the existence of this phenomenon is currently at threat. This can be achieved on a state level with the use of the empirical measures previously mentioned. A low ROL index, as well economic factors such as a low economic growth rate are indicative of the absence of the ROL. States with these indicators are perhaps places in which the ROL is in danger.

When we ask, however, if, how and why the ROL is in danger, the psychical aspect of the ROL has to be examined. The ROL as an ideal or a belief is of critical importance to its existence. As a concept, the ROL would be in danger when a decreased number of people believe in it, or hold it as an ideal. There is also a possibility of the distortion, or misuse of the ROL, resulting again with a further decline in the belief of the ROL.

A major obstruction to the wellbeing of the ROL concept is the epidemic of confusion that is present not only to the layman, but also to academic circles. We now turn to how this may happen.

The laymans view of the ROL was clarified by asking two people, with no legal background, what they thought the ROL was. The first person, located in Singapore thought that If there is a law, you have to follow it. If no one follows the law that is laid out, then society would be lawless. If there is a law which dictates how things are to be handled then it should be handled as such.[26] This interpretation of the ROL shows the overriding belief that the law is ultimate. This person does not question the law, how it was made, who it was made by, or the motives behind the law. This could be perhaps that he has a high level of faith in the legal system, or that he is not aware of these issues.

The second person queried is resident in the United States and believes the ROL as laws based of off the morals and values of a society, which aim to keep unfairness to a minimum. It infers it is a constant, that it affects all that are under it that there should be no exceptions.[27] Here, it can be seen that this person thinks the basis of the ROL is society, and its morals. This view can be seen to be vastly different from the first. One view holds the written law as ultimate, and the other holds societys morals as ultimate. This demonstrates the fundamental difference and variation in belief of what the ROL is. It is to be noted that officially Singapore is a republic while the U.S. is a democracy. The confusion referred to, regarding what the ROL means to the lay person, is directly observed here.

In the literature however, the confusion is equal to or even more endemic. Bennett presents[28] the various ROL formulations based on Tamanahas categorisation[29]. It can be seen that within substantive and formal theories, six basic categories exist, each containing the further variations of ROL. This is in contrast with Ungers categorisations, as mentioned at the beginning of this paper, of customary, regulatory and legal order[30]. Furthermore, Ungers theory proposes the decline of the ROL with the welfare state[31], whereas this is where, yet another theorist, Habermas proposes his proceduralist paradigm[32]. With just these four theorists, we can see that there are great variations in their methods of categorisation, timeline taken into account and typology of governments. Additional theorists include Fuller, who included eight requirements to the ROL and proposed an internal morality of law.[33] Additionally Joseph Raz proposed another eight requirements[34] and th e idea of effective guidance.[35] Formulations of the ROL are not only confined to those by theorists. The Declaration of Delhi in 1959 identified and came to conclusions on four aspects of the ROL, namely the Legislative, the Executive, Criminal Process and the Judiciary and the Legal Profession.[36] The definition of the ROL was also given by Justice Heydon at a dinner hosted by a magazine.[37] Nicholas Cowdery, the NSW Director of Public Prosecutions gave a speech at the University of Sydney in which he deduced twelve requirements to the ROL.[38]

With such a vast number of theories about what the ROL is or should be, and the on going redefinition being played out not only in academia but in education and social functions, it is not surprising that many label the ROL as an essentially contested concept.[39] This idea states that a concept may be contestable at its very core, and may not be able to be solved by pure argument alone. This theory is used by Waldron where he points out that There is contestation about the content and requirements of the Rule of Law ideal, and there is contestation about its point. The two forms of contestation of course feed off one another.[40] Waldron however uses Dworkins work[41] to point out that as indeterminate as the ROL is, It is part of law and the practice of law to reflect and wonder what law is.[42]

Waldrons analysis allows us to see that the literature admittedly acknowledges there is a great amount of confusion on the ROL. This lets us answer the question of whether there is danger to the ROL, with a resounding yes. There is confusion on what the ROL is to both academics and the lay person.

The other danger to the ROL is identified by Tamanaha in the U.S. where he identifies the use of Legal Instrumentalism, by the legal profession, as possibly undermining the ROL.[43] Legal Instrumentalism is the use of the law as a tool in order to achieve an end, without taking into account any moral considerations. Tamanaha shows that this view of the law is also within our educational system as students are taught to ignore the binding quality of law. After three years of this, students understandably come to think that legal rules are nothing but tools lawyers utilize on behalf of whichever side they represent.[44] Also, he quotes Robert Gordon in saying lawyers "are expected and even encouraged to exploit every loophole in the rules, take advantage of every one of their opponents' tactical mistakes or oversights, and stretch every legal or factual interpretation to favor their clients."[45]

Curiously, in accord with this analysis of legal instrumentalism is the study by Lydia Tiede.[46] Perhaps the results she obtained showing the wide variation of outcomes over similar cases can be accounted for by the practice of legal instrumentalism on the part of the judges in the cases studied. If this is so, her study would demonstrate the direct effect of the ROL on the observable outcomes of the law.

THE RULE IS ALIVE BUT UNDER CONTEMPOARARY CONDITIONS IT IS IN DANGER

We are now in a position to see that the ROL is perhaps at its peak worldwide, especially with globalisation and our ability to use statistical measures. The World Justice Projects efforts at domestic and international mainstreaming of the ROL, if achievable, are perhaps the closest we have ever come to a solution. If a worldwide ROL standard can be agreed upon, the ROL will be concretized in both the mental and physical world. This would allow additional empirical studies to be carried out, and great advancements in our understanding of the ROL and in the furtherance of justice would result.

However, the ROL is also in the most danger now as compared to any other time in the past. Confusion about the meaning of the ROL has never been so extensive, and the emergence of the trend of legal instrumentalism throughout the legal profession poses yet more challenges to the ROL.

References

[1] Roberto Mangabeira Unger, Law in Modern Society (1976) at 48-58.

[2] Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (In Florida)? (2002) 21 Law and Philosophy 2 p137-164 at 141.

[3] Brian Tamanaha, On the Rule of Law: History, Politics, Theory (2004).

[4] H.E. Srgjan Kerim, At the Presentation of the Final Report on The UN Security Council and the Rule of Law (2008) UN General Assembly accessed 30 May 2008.

[5] Prue Vines, Law & Justice in Australia: Foundations of the Legal System (2005) at 29.

[6] Prue Vines, Law & Justice in Australia: Foundations of the Legal System (2005) at 86.

[7] Girish Bhat, Recovering the Historical Rechtsstaat (2007) 32 Review of Central and East European Law at 68.

[8] AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed,1959) at 202.

[9] American Bar Association, The World Justice Project (2008) WJP Resource Kit accessed 30 May 2008.

[10] American Bar Association, World Justice Project Frequently Asked Questions

accessed 30 May 2008.

[11] American Bar Association, The World Justice Project (2008) WJP Resource Kit at [rule 2] accessed 30 May 2008.

[12] Id at rule 7.

[13] Id at rule 10.

[14] Id at rule 13.

[15] Id at 23.

[16] American Bar Association, Rule of Law Index (2008) accessed 30 May 2008.

[17] Robert Barro, Index of Economic Freedom: Rule of Law, Democracy, and Economic Performance (2000) at 34.

[18] Id at 36.

[19] Id at 41.

[20] Id at 47.

[21] Lydia Tiede, The Rule of Law: What is it? Can we measure it? Do we have it? (2006) Prepared for the First Annual Conference on Empirical Legal Studies.

[22] Id at 19.

[23] Id at 20.

[24] Id at 21.

[25] Id at 22.

[26] Timothy Ngui, Singapore, Monday May 26 2008.

[27] Eric Rautio, New York, U.S., Monday May 26 2008.

[28] Mark Bennett, The Rule of Law Means Literally What It Says: The Rule of Law: Fuller and Razon Formal Legality and the Concept of Law(2007) 32 Australian Journal of Legal Philosophy at 94.

[29] Brian Tamanaha, On the Rule of Law: History, Politics, Theory (2004).

[30] Roberto Unger, Law in Modern Society: Three Concepts of Law (1976) at 48-58.

[31] Roberto Unger, Law in Modern Society: The Disintegration of the Rule of Law in Postliberal Society, (1976) at 192 203.

[32] Jurgen Habermas, Paradigms of Law (1996) 17 Cardoso Law Review 4-5 at 771 786.

[33] Lon Fuller, The Morality of Law (1964).

[34] Joseph Raz, Authority of Law: Essays on Law and Morality (1979) at 214-219.

[35] Id at 218.

[36]New Delhi Congress, Declaration of Delhi (1959) The International Commission of Jurists accessed 30 May 2008.

[37] D. Heydon, Judicial Activism and the Death of the Rule of Law (2003) 23 Australian Bar Review 2 at 111.

[38] Nicholas Cowdery, The Rule of Law and the Separation of Powers Slogans or Substance? (2008) University of Sydney at [9] accessed 30 May 2008.

[39] W.B. Gallie, Essentially Contested Concepts (1956) 56 Proceedings of the Aristotlean Society 167.

[40] Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (In Florida)? (2002) 21 Law and Philosophy 2 p137-164 at 159.

[41] Ronald Dworkin, Laws Empire (1986).

[42] Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (In Florida)? (2002) 21 Law and Philosophy 2 p137-164 at 164.

[43] Brian Tamanaha, The Tension Between Legal Instrumentalism and The Rule of Law (2005) 33 Syracuse J. of Intl L. & Com 131.

[44] Brian Tamanaha, The Tension Between Legal Instrumentalism and The Rule of Law (2005) 33 Syracuse J. of Intl L. & Com 131 at 146.

[45] Robert Gordon, The Independence of Lawyers (1988) 68 B.U. L. REV. 1 10.

[46] Lydia Tiede, The Rule of Law: What is it? Can we measure it? Do we have it? (2006) Prepared for the First Annual Conference on Empirical Legal Studies.





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