Leon Louw (twice Nobel Peace Prize-nominated South African intellectual, author, speaker and policy advisor) in his article what is rule of law said
“it has become politically imperative for governments and politicians of every persuasion to declare themselves to be for “the rule of law” regardless of what they mean by it or what their ideology may be. Most modern politicians from Robert Mugabe to Tony Blair from Saddam Hussein to George W Bush, say they espouse it.”1
The fact is that governments in all parts of the world declare they respect the rule of law and they rule pursuant to law.Without challenging whether such claims are pretentious or real, one thing is clear that – rule of law- has become universal concept that even the UN General Assembly actively promotes the realization of rule of law. As one writer has stated
“the rule of law is the single most important characteristic of winning nations, and the area of biggest difference between winners and losers, which suggests that it should be every government’s top priority.”2
Indeed the concept of rule of law is not a modern time invention. Although professor Dicey is credited for coining the word “rule of law”, it can be traced back to ancient times.Societies have been striving to establish rule of law so that their rights and freedoms are not at risk of being robbed arbitrarily by the people who happen to sit in power.
The great Greek Philosopher had observed that
“the rule of law is preferred to that of any individual….He who bids the law rule may be deemed to bid God and reason alone rule, but he who bids a man rule adds an element of the beast; for desire is as a wild beast, and passion perverts the mind of rulers, even where there are the best of men. The law is reason unaffected by desire.”3
Unlike the earliest times, however, today people are becoming extremely intolerant to allow “men” exercise unrestrained power over them. People in many parts of the globe are resisting against rule of men as opposed to rule of law. The rationale behind such intolerance and rejection stems from the understanding of the dangers inherent in unrestrained exercise of power for the saying goes “power corrupts and absolute power corrupts absolutely”.
People seek to enjoy their freedoms and liberties in pursuit of their desires and goals. At the same time they seek protection and security. Security and protection can’t, however, be guaranteed but at the expense of certain freedoms. In surrendering their liberties people want to make sure arbitrariness is avoided both in making of the law and in administering and implementing it. And this can only be achieved if they are ruled by law and not by men. But it is said that for law to ‘rule’ there must firstly be law perse.4 Not only the availability of law but the quality of the law is also very crucial.
When governments make law, they expect citizens to obey the law. And they prescribe sanctions for non-compliance. However, obedience to law is not prompted by fear of punishment. People obey most laws because they think it is right to do so or morally justifiable. It can also be argued that there is a risk for citizens to disobey the law, if it happens to fail their expectations of justice and reasonableness.Lon fuller argued that” ‘law is not valid because it says it is.’ Rather its authority must ultimately rest on the moral attitudes of the people. The law earns fidelity by the general moral quality of its rules.”5
So it means law has moral force.
As pointed out above, today it is commonplace to witness countries’, whether to respond international pressures or their internal circumstance, incorporating ‘rule of law’ in their constitutions and various laws and make every effort to enforce the same. Leon Loaw argues that capitalists, socialists, religious fundamentalists and others who might not agree on much, can at least and often do, agree on the rule of law. 6
The problem comes, however, when what is stated in theory or on paper is not implemented on the ground. In most countries there is mismatch between what the law claims to have or promises and how people are treated by the legal systems. Rule of law, among other things, implies equality before the law. The rich and the poor, the weak and the strong, need to be treated equally. It means both the ruled and the rulers are bound by the law because nobody is above the law. People can’t also be said to be equal before the law unless they all have equal access to the justice system.
Unfortunately, as experience reveals, few societies can only claim to have attained such level of ‘rule of law’. The rest of societies, especially in Africa and Asia, are ruled by the whims of their rulers not by law. The law the rulers enact don’t bind themselves but their subjects. Worst of all, the rich and strong section of the society may not respect the law but still can manage to escape any liability. This situation leads to a situation where people perceive that law applies to and is respected only by the poor and the weak. In many countries particularly in Africa and Asia, people are arrested with-out due process of law, are subjected to gross violations of human rights violations, and are unable to enforce their fundamental rights enshrined in their constitutions.
At the international level, international law is premised on the fundamental principle of ‘sovereign equality’ of states. The powerful nations of the world who present themselves to the world as champions of ‘rule of law’ have been and are violating every international rule of law. For instance, the UN Security Council, the organ of the UN, which is responsible to maintain international peace and security, acts when the interests of the permanent members are affected. Measures at the international level are taken selectively.
Under the circumstances where rulers or countries very often violate the rule of law,passing retrospective laws or basing their legal decisions on personal whims, citizens tend to feel resentment. And this resentment is build up when rulers fail to perform their own reciprocal duties while at the same time expecting or requesting citizens to obey the law. In such a case, Fuller argues, “citizens don’t have a duty to obey the dictates of government.”And this resentment to violations of the rule of law is reasonable because it is a sense of fairness or reciprocity.”7
At the end of the day, the impact of such violations and erosions of the rule of law will result in the ‘rule of law’ to lose its moral force.
Tesfaldet Hadgu is studying LL.M at South Asian University (SAU), New Delhi, India.
N.B: The write up has already been submitted as Term Paper.
- Leon Louw, “what is Rule of Law” 2007
- Jan Wouters, Transitional socieites and rule of law. P 29 .March 2010
- SuriRanapala, Jurisprudence; Cambridge University press; 2009.
- Supra note2
- Collen Murphy, “ Lon Fuller and the Moral content of the Rule of Law”. 2005