Rule of Law

© LKM

19/10/2024

1. How to measure whether our actions are good or bad?

a. By morality. Then we may face the challenge of relativity and
lack of consensus about moral and ethical principles. Law can be
the agreed and standardized versions of ethical principles.
b. The concept of legalism (e.g. Han Fei Zi) may help. In this sense
law is used as a tool of rule.

2. Legalism can be understood in a more advanced understanding of the

Rule of Law.
a. distinction is made between Rule of Law and Rule by Law
“Rule of Law and Rule by Law
Some theorists draw a distinction between the Rule of Law and
what they call rule by law (see e.g., Tamanaha 2004: 3). They
celebrate the one and disparage the other. The Rule of Law is
supposed to lift law above politics. The idea is that the law
should stand above every powerful person and agency in the
land. Rule by law, in contrast, connotes the instrumental use of
law as a tool of political power. It means that the state uses law
to control its citizens but tries never to allow law to be used to
control the state. Rule by law is associated with the debasement
of legality by authoritarian regimes, in modern China for
example.

Thomas Hobbes may be seen as a theorist of rule by law. In a

society whose members disagree about property, he thought it
conducive to peace for the sovereign of a society “to make some
common Rules for all men, and to declare them publiquely, by
which every man may know what may be called his, what
anothers” (Hobbes 1647: Bk. II, ch. 6, sect. ix). But Hobbes also
thought that it would undermine peace—indeed it would
undermine the very logic of sovereignty—for the ultimate law-
maker to be bound by the laws he applied to his subjects
(Hobbes 1991 [1651]: 184).
 However, the distinction may not be so clear-cut. Even rule by
law seems to imply that rulers accept something like the formal
discipline of legality. Unless the orders issued by the state are
general, clear, prospective, public, and relatively stable, the state
is not ruling by law. So this thin version of legality does still have
moral significance in the respect it pays to the human need for
clarity and predictability. Rule by law “can be a way a
government … stabilizes and secures expectations” (Goodpaster
2003: 686). Even if its use remains instrumental to the purposes
of the state, it involves what Fuller called a bond of reciprocity
with the purposes of those who are governed: the latter are
assured that the promulgated rules are the ones that will be used
to evaluate their actions (see also Winston 2005: 316).” (Source:
Standford Encycolpedi of Philosophy, Article on Rule of Law by
Jeremy Waldron).

3. (Form & Content of Law)

There are many different theories regarding this. Formality, Procedure,
and Substance are important.
It is necessary that the substance of law is also just.
For testing the internal moral coherence and validity of law, Fuller’s
Eight principles are helpful.

“(1) the requirement of generality, that is, there must be general rules;
(2) the promulgation of the rules;
(3) the prospective application of law;
(4) the clarity of laws;
(5) avoidance of contradictions in the laws, that is, consistency in laws
is necessary;
(6) avoidance of laws commanding the impossible;
(7) the constancy of law through time, that is, avoidance of too
frequent changes in the law;
(8) the congruence between official action and declared rule, that is,
prevention of discrepancy between the law as declared and the law as
actually administered.

These eight principles of legality constitute the inner morality of law,

"the morality that makes law possible." They are standards of
excellence. They are arrived at not by reference to any external
 standard of morality or the substantive aims of the law.”” (John E.
Murray Jr., Introduction to the Morality of Law, 10 Vill. L. Rev. 624
(1965)).

4. According to WJP Rule of Law index, Bangladesh stands 127 th among

142 countries.
(https://worldjusticeproject.org/rule-of-law-index/country/2023/Banglad
esh)
5. WJS’s definition of Rule of Law is as follows:
“The rule of law is a durable system of laws, institutions, norms,
and community commitment that delivers four universal
principles: accountability, just law, open government, and
accessible and impartial justice.
 Accountability
The government as well as private actors are accountable under
the law.
 Just Law
The law is clear, publicized, and stable and is applied evenly. It
ensures human rights as well as property, contract, and
procedural rights.
 Open Government
The processes by which the law is adopted, administered,
adjudicated, and enforced are accessible, fair, and efficient.
 Accessible and Impartial Justice
Justice is delivered timely by competent, ethical, and
independent representatives and neutrals who are accessible,
have adequate resources, and reflect the makeup of the
communities they serve.”
(https://worldjusticeproject.org/about-us/overview/what-rule-law)

Illustrative questions

1. Accountability
 Are politicians and government officials held accountable for
corruption?
 Do people face legal consequences for wrongdoing regardless of their
wealth or status?
 Are there mechanisms in place to prevent abuses of power?
 Do checks on the government’s power, such as a free and independent
press, exist?
 Is transition of power subject to the law?

2. Just Law
 Is the law understandable to all people?
 Is the law publicly available and easily accessible?
 Is the law stable and steady?
 Does the law apply equally to people of all backgrounds and social
class?
 Are core human, procedural, and property rights enshrined in the law?

3. Open Government
 Is it easy to find out how the government manages public resources
and to request information from the government?
 Can citizens collaborate with government officials to improve the rule
of law?
 Can people bring complaints to the government without facing
repercussions?
 Does the government respond to queries about its actions in a timely
manner with useful information?
 Are freedoms of opinion, expression, assembly, and association
respected?

4. Accessible and Impartial Justice

 Is dispute resolution accessible and affordable?
 Can people resolve their disputes in a timely manner?
 Is the justice system free of corruption and improper influence?
 Do the police, lawyers, and judges have adequate resources to
administer justice?
 Are the police, lawyers, and judges neutral and independent?