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Elements of rule of law 1

The concept of the rule of law consists of a number of distinct but interconnected elements. They include:

  • the absence of arbitrary power (or: the supremacy of the law – which is often used as a synonym for the rule of law); meaning that no-one can be punished for anything apart from a breach of law;
  • an independent judiciary, a power not subject to any other and dedicated only to the administration of justice, a prerequisite for the rule of law;
  • the concept of an independent judiciary implies a separation of powers between the judiciary and the law-making body, the legislature, and the judiciary and the executive;
  • equality before the law which means the subjugation of all – without distinction – to the law (this follows from the idea that if some were privileged with respect to the law, the law itself would be arbitrary);
  • the concept of equality before the law implies ready access to legal counsel and courts of law irrespective of means, an important issue with respect to those without adequate financial means (a problem that might be solved through provision of legal aid or voluntary assistance by the legal profession);
  • justice must be an end in itself (any other purpose would imply that the law is there to promote something other than justice – which consequently would make law partisan);
  • where a formal constitution exists, all laws must be in accordance with the constitution and not violate the liberties and rights enshrined therein;
  • following the same line of reasoning all laws are subject to judicial review, eg, by a constitutional court;
  • agencies of the government can only work within their legal mandate, ie, with the lawful means specially granted and within the limits prescribed by the legislative body for a particular task or, to put this point in another way, no agency of the government may act outside the law;
  • in regard to cases of transgression or dispute arising from administrative action or from conflicts between individuals effective provisions for appeal or recourse to a court of law must exist;
  • the principle of state liability meaning, in practical terms, government and its agencies are liable for their actions and must, in consequence, compensate for damage done by unlawful state action (the guarantee of access to a court of law would mean little in the case of relevant disputes if this principle were not in place);
  • reliability and predictability,2 ie, the individual should be able to ascertain what the law says in a straightforward manner and plan his/her actions knowing what the law permits and does not permit (the law cannot be supreme if it is unclear or not known);
  • by extension this means that, in general, action in accordance with the law cannot be deemed to be against the law at some future time (no retroactive justice, ie, the rule of law does not permit retroactive justice).3
  • punishment may only be imposed if a breach of the law is established in a lawful manner by an impartial tribunal (anything else amounts to arbitrary action and is contrary to the rule of law);
  • intimately connected with the above principle is that of due process of law, meaning that proceedings in a court of law must be fair and hence follow certain rules that serve to promote a fair hearing. These include:
    • the presumption of innocence unless proven guilty,
    • the establishment of guilt beyond any reasonable doubt,
    • investigation and trial in different hands; by the same token, the prosecutor and the judge may not be the same person,
    • that trials are public and all evidence and instruments of proof subject to public scrutiny,the right to legal counsel on the part of the accused,
    • (In some legal systems due process also includes the right to be tried by jury).
  • commensurate legal sanctions (punishment must fit the crime), meaning – to give two extreme examples - that petty theft cannot be punished by execution and premeditated murder by a suspended prison sentence;
  • rapid dispensation of justice (“justice delayed is no justice”) and
  • effective enforcement of law. If the police and the courts are slow or unable to enforce law, the effect is to undermine law.
1Text: Stefan Melnik
2Reliability and predictability imply, for instance, that people who commit the same crime cannot be punished differently for such a crime. The close relationship with the principle of equality under the law is obvious.
3Of course, there are exceptions to this in extreme cases where the law is manifestly criminal in its objectives.