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1 THE RULE OF LAW
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University
2 CONTENTS
• Concept of the Rule of Law
• Principles of the Rule of Law
• The Rule of Law Index
3 Concept
• “The Rule of Law” - Pháp quyền
The expression “Rule of Law” has been derived from the French phrase “la principle de l’égalité”,
i.e. a government based on the principles of law.
It was expounded for the first time by Sri Edward Coke, and was developed by Prof. A.V. Dicey in
his book “The Law of the Constitution” published in 1885.
• Vietnamese version: Nhà nước pháp quyền (Rule of law based Government) – a government
based on the principles of the rule of law. Art.2 Constitution of 2013.
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4 Concept
• According to Edward Coke, “Rule of Law” means:
Absence of arbitrary power on the part of the Government
No man is punishable or can be made to suffer in body or good except for a distinct breach of
law established in the ordinary legal manner before the ordinary courts of the land
5 Concept
• As per Prof. A.V. Dicey: “The rule of law” means the absolute supremacy or predominance of the
regular law as opposed to the influence of arbitrary power and excludes the existence of
arbitrariness or even of wide discretionary authority on the part of the government” (the Law of
the Constitution)
6 Principles
• According to Prof. Dicey, rules of law contains 3 principles or it has 3 meanings as stated below:
1. Supremacy of law: “no man is punishable or can lawfully be made to suffer in body or goods
except for a distinct breach of law established in the ordinary legal manner before the ordinary
courts of the land.
2. Equality before law: everyone is equal before law; “no man is above law”
3. Predominance of legal spirit: the general principles of the constitution are the result of judicial
decisions determining rights of private persons in particular cases brought before the court.
7 Principles
• The Rule of Law, in its most basic form, is the principle that no one is above the law. Law is
supreme, above everything and everyone. Nobody is above law.
• It is the law and not the individual or group of individuals which rules or governs the people. All
actions must be according to law and not according to whom.
• Every person, whatever be rank and condition, is subject to the ordinary law of the nation.
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8 Principles
• The most important application of the Rule of Law is the principle that government must be
conducted within the framework of recognized rules which restrict discretionary powers.
• The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian
leader or by mod rule.
• Thus, the Rule of Law is hostile both to dictatorship and to anarchy.
• Discretionary powers should be exercised within reasonable limits set by law.
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Case study: Vietnam Police forced a Woman to Test for Covid-19 in Sep 2021 in Binh Duong
In this case, was the rule of law violated?
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11 Violation of the rule of law
• 2 basic principles:
Absence of arbitrary power on the part of the local authority >< the police violently forced the
citizen to Test for Covid-19 without reasonable legal bases. This act presented the will of the local
authorities, not the law.
No man is punishable or can be made to suffer in body or good except for a distinct breach of
law established in the ordinary legal manner before the ordinary courts of the land >< the local
authorities’ violation of basic human rights (right to be protected against violence or any
treatment harming his or her body and health; right to the inviolability of his or her domicile…)
• The question of the rule of law in a state of emergency. In emergencies, human rights may be
limited or derogated by special governmental measures. However, the problems arise that:
It was not in a state of emergency
Even in an emergency, discretionary powers should be exercised within reasonable limits set by
law.
12 Group Discussion
How is the rule of law important to your life? How does it protect your rights and well-being in
your daily life?
13 What does the rule of law mean, and how does it affect your daily lives?
Nine American federal judges explain how fair and consistent adherence to the law protects their
rights and well-being in everyday situations like buying a breakfast sandwich, reading mail, and
investing in the stock market.
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15 Summary of the American Judges’ views
• Key to the rule of law, the judges say, is a commitment to applying the law to everyone fairly.
• Other attributes include applying the law to government, not just individuals and entities;
• Making the law clear and legal proceedings transparent;
• Balancing individual rights against the safety of others.
• “Your right to swing your fist stops just short of my nose,” Judges Benton said. “And that’s what the
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“Your right to swing your fist stops just short of my nose,” Judges Benton said. “And that’s what the
rule of law is meant to do, is to find that boundary.”
16 Pre-conditions for the Rule of Law
• Certain minimum standards for law conforming to social standards.
• Absence of retroactive penal law.
• Fair and Just Procedure.
• Speedy Trial in Criminal Cases.
• Equal access to Law.
• Legal Aid to the Poor.
17 Pre-conditions for the Rule of Law
• Sound legal profession.
• Independent & impartial judiciary
• Authority of the courts to test authorities’ actions, by the standards of legality.
18 The World Justice Project Rule of Law Index
• The World Justice Project (WJP) is an international civil society organization with the stated
mission of "working to advance the rule of law around the world".
• The WJP works through three programs — Research and Scholarship, the WJP Rule of Law Index,
and Engagement. WJP seeks to increase public awareness about the foundational importance of
the rule of law, stimulate government reforms, and develop practical programs at the community
level.
• The WJP Rule of Law Index is the world’s leading source for original, independent data on the rule
of law.
• Now covering 139 countries and jurisdictions, the Index relies on national surveys of more than
138,000 households and 4,200 legal practitioners and experts to measure how the rule of law is
experienced and perceived around the world.
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19 Goals of the WJP Index
• The goals of the WJP Index are:
To measure adherence to the rule of law, not in theory but in practice.
To identify strengths and weaknesses of each country as compared with its peers.
To encourage efforts to strengthen the rule of law.
20 The four Universal Principles of the Rule of Law (defined by WJP)
1. Accountability: The government as well as private actors are accountable under the law.
2. Just Laws: The laws are clear, publicized, and stable; are applied evenly; and protect fundamental
rights, including the security of persons and contract, property, and human rights.
3. Open Government: The processes by which the laws are enacted, administered, and enforced are
accessible, fair, and efficient.
4. Accessible and Impartial Dispute Resolution: 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.
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21 The Eight Factors for the Rule of Law Index
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1. Constraints on Government Powers
2. Absence of Corruption
3. Open Government
4. Fundamental Rights
5. Order and Security
6. Regulatory Enforcement
7. Civil Justice
8. Criminal Justice
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22 WJP Rule of Law Index 2021
• Denmark, Norway and Finland topped the WJP Rule of Law Index rankings
• Venezuela, Cambodia, and Congo had the lowest overall rule of law scores.
• East Asia and Pacific’s top performers in the Index is New Zealand, Australia and Japan.
• Philippines, Myanmar, and Cambodia are 3 countries with the lowest scores in the region.
23 Vietnam Rankings in 2021
• At 88/139 countries and jurisdictions worldwide.
• At 11/15 countries in the East Asia and Pacific region and 12 out of 35 among lower-middle
income countries.
• With the lowest rule of law scores in Fundamental rights and Constraints on Government.
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24 Conclusion
• The rule of law plays an extremely important role in society. Effective rule of law reduces
corruption, combats poverty and disease, and protects people from injustices large and small. It
underpins development, accountable government, and respect for fundamental rights, and it is
the foundation for communities of justice, opportunity, and peace.
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Q&A
