Circumstances for departing from the rule of law

¶ … depart from the rule of law?

Rule of Law

As Waldron (2009) emphasizes, the rule of law is considered to be "… one of the most important political ideals of our time."

He provides the following example of the rule of law in an international setting.

As a November 2007 New York Times editorial states, when President Musharaff of Pakistan fired the chief justice of the Supreme Court of Pakistan and had him placed under house arrest, Musharaff's actions were seen around the world as a crisis of the Rule of Law. Law societies and bar associations all over the world protested and, in Pakistan itself, thousands of judges and lawyers demonstrated in the streets and hundreds of them were beaten and arrested.

The above stresses the universal acceptance of the rule of law. The following essay is intended to address the question; under what circumstances is it appropriate to deviate from the rule of law? It will be suggested in this paper that while the rule of law cannot be deviated from in principle it can be questioned and interrogated. There are certain circumstances, such as issues relating to social security and human rights where the rule of law may not live up to its core principles and tenets of equality and the ethos of fairness and justice that constitutes the foundation of the rule of law.

In order to discuss possible deviations from this concept one first has to understand the context as well as fundamental concepts of the rule of law both in theory and praxis. The following section will therefore provide an overview of the rule of law.

2. The Rule of Law

As a number of studies of this subject point out, the rule of law does not have a precise definition. The meaning of this term can vary considerably between different cultures and different legal structures and traditions. In essence, it is understood as a "… legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions."

At a very fundamental level it is "… a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power."

The rule of law therefore supersedes governmental or other interest groups and is intended to maintain a system of unbiased and even-handed justice.

The rule of law is also seen as an essential and fundamental part of Western Democracy. The history of the rule of law can be traced back to the writings of Plato and Aristotle, which were extremely influential in the development of Western civilization and the democratic ideal. As Aristotle stated more than two thousand years ago; "The rule of law is better than that of any individual."

This refers to the principle of protection from abusive power through this concept. The law becomes the guiding principle for decision and actions in the society, which transcends parties and power groups. This point is emphasized in one study as follows: "The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King."

This is an aspect that cannot be overemphasized. Another study on this subject clearly and succinctly summarizes this essential point.

The rule of law first of all implies that law is applied impersonally. That is, the law is not created in order to satisfy the preferences of any individuals. The impersonal nature of the rule of law creates a seal between the application of political and legal power (which is necessarily in the hands of persons in positions of leadership) and the justification of the use of that power (which is assigned to the law itself). This is perhaps the most important aspect of the rule of law as it effectively bars the arbitrary use of power.

The above is quoted at length as it underlines an essential point. The primary function of the rule of law is to ensure that the use of power is " bound" or limited by the law which has no bias or preference. This means that the power of office or economic or political power cannot be used to attain private and personal ends which exceed the law. This leads to the following important implication of the rule of law: "If the rule of law is perfectly applied, it is not possible for political action to be a result of personal preferences."

More specifically the rule of law can be broken down or categorized into certain central elements. These are;

The supremacy of law -- which implies that both the individual and the government are subject to the law.

The concept of justice - which emphasizes interpersonal adjudication, law based on standards and the importance of procedures.

Restrictions on the exercise of discretionary power.

The doctrine of judicial precedent.

An independent judiciary.

The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.

An underlying moral basis for all law.

There are also a number of important elements that are necessary for the institution and functioning of the rule of law. These include the cardinal point made above that laws transcend the individuals and government officials; these laws must be published and they must be clear and not contradictory.

Furthermore, the rule of law necessitates that,

Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed. "

An important element of the rule of law is the laws should be able to be revised and altered if change is necessitated by social or political events or circumstances. This is a point that will be expanded on the following section on the possible deviations from the rule of law.

The above also refers to a central concern in the application of the rule of law. With the formalization of the law these laws may become entrenched and hidebound over time. Furthermore, due to social or political circumstances some laws may take precedence over others, with the result that the legal system may become too rigid and even biased; and this in turn may have a detrimental effect on aspects such as human rights in the society.

The above discussion leads to the central principles that reflect the spirit of the rule of law. The first principle from an article by the Rule of Law Institute of Australia refers to the aforementioned point that government should be subject to and under the law. In other words,"… the law should apply to and be observed by government and its agencies, those given power in the community, just as it apply to the ordinary citizen."

The second principle is that those who administer the law, such as judges and solicitors should be unbiased and uninfluenced by external factors such as their role, position or their duties. Thirdly, there should be "… ready access to the courts of law for those who seek legal remedy and relief."

The fourth principle is that the laws of the land should be "…certain, general and equal in its operation."

In terms of conceptualization and theory, the rule of law can be understood form two perspectives; this refers to the materialist and idealist stances. The idealist view sees the rule of laws as an abstract concept that must be adhered to, while from the materialist point-of-view the rule of law is a result of the progress of civilized development; "…the materialists would say it is a concept that has arisen into our consciousness, due to humanity's achievement of the material world with technology."

Both these perspectives are important for a full understanding of the development of the rule of law in our contemporary society.

A distinction should also be made between the rule by law and the rule of law. The rule of law should not be reduced to or understood as the rule by law. The rule of law has greater depth and meaning than just the application of laws. "The rule of law is not the systematic and constant application of laws -- that is rule by law, not the rule of law…"

Furthermore, predictability is a central and important aspect of the rule of law. This is linked to the concept of legal and societal stability and open access to the law by everyone. In this regard, …a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

3. Deviations from the Rule of Law

In essence, and in principle, there should not be any deviation or abrogation of the rule of law. As Waldron (2009) emphasizes in an article entitled, The Concept of the Rule of law, the rule of law

... is invoked whenever we criticize governments that are trying to get their way by arbitrary and oppressive action or by short-circuiting the procedures laid down in a country's laws or constitution. Interfering with the courts, jailing someone without legal justification, detaining people without due process, manipulating the constitution for partisan advantage -- all these actions are seen as abuses of the Rule of Law.

In other words, the rule of law provides the normative structure that gives stability to the society. Therefore, deviations from the norms of the rule of law threaten the structure of a democratic society. Consequently, such deviations are only appropriate in the most exceptional of circumstances.

As the author of the above article states,

The Rule of Law is violated...when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens, or when officials act on the basis of their own discretion rather than rules laid down in advance.

This also relates to the classical defence of the rule of law. This refers to the liberal, egalitarian and rational tendencies in political philosophy. More specifically it refers to the trend in Western thought towards a rationalistic ethos of thought and action, which stresses a reasoned and rational rather than an emotional or passionate approach to the law and society. We see this in Plato's ideal republic which was "... A construction of reason...one of the major concerns of the Republic was the development of leadership that would not corrupt and would remain subservient to its rational law."

This is also linked in Western thought to egalitarianism and the balance of power and class. In other words, "...the rule of law is a necessary & #8230;condition for most forms of liberalism that have dominated political thought since the enlightenment."

In the light of this trend in thought in the Western world the importance of the rule of law becomes clear as well as the inappropriateness of any deviation from this rule of law.

However while there is in principle are no theoretically conceivable situation where the rule of law would be appropriate, it can be argued that there are situations that place the rule of law into question and even doubt. It must be remembered that the rule of allow does not refer to specific laws but rather to an ethos and underlying principle of legal equality and fairness in society in general. An abrogation of the rule of law in principle therefore means that, "Such a society will quickly relapse into a state of arbitrary tyranny."

The essence of the rule of law is to ensure fair and egalitarian legal treatment, yet there may be situations where the rule of law is open to questioning on certain grounds; for example, where the rule of law appears to contradict essential human rights or prohibit individual freedom unnecessarily.

An example from the human rights arena may serve to illustrate this point. While a central aspect and function of the rule of law is to enable the ordinary citizen to enforce their rights, yet in some countries this has not been a characteristic feature of the rule of law. A good example in this regards is South Africa. As de Vos (2009) states,

... In South Africa most people -- let alone poor people -- do not have the money needed to pay for lawyers that would enforce their rights and entitlements in court. A poor person who enters into a verbal contract with someone who fails to honour his or her word, will not be assisted by the law if the powerful contractee just ignores his or her obligations. Neither will such a person have much chance to challenge an unjust, unfair or unconstitutional decision by a state official to stop her pension, evict her from her shack or confiscate her goats -- simply because such a person will not be able to pay lawyers to represent him or her.