RULE OF LAW

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RULE OF LAW
The rule of law is an ambiguous term that can mean different things in different contexts.
In one context the term means rule according tolaw. No individual can be ordered by the
government to pay civil damages or suffer criminal punishment except in strict accordance with
well-established and clearly defined laws and procedures.
In a second context the term means rule under law. No branch of government is above
the law, and no public official may act arbitrarily or unilaterally outside the law.
In a third context the term means rule according to a higherlaw. No written law may be
enforced by the government unless it conforms with certain unwritten, universal principles of
fairness, morality,and justice that transcend human legal systems.
Rule According to Law
The rule of law requires the government to exercise its power in accordance with
well-established and clearly written rules, regulations, and legal principles.
A distinction is sometimes drawn between power , will, and force, on the one hand, and law,
on the other.
When a governmentofficial acts pursuant to an express provision of a written law, he acts
within the rule of law. But when a government official acts without the imprimatur of any law,
he or she does so by the sheer force of personal will and power.
Under the rule of law, no person may be prosecuted for an act that is not punishable by
law. When the government seeks to punish someonefor an offense that was not deemed criminal
at the time it was committed, the rule of law is violated because the government exceeds its
legal authority to punish. The rule of law requires that government impose liability only insofar
as the law will allow. Government exceeds itsauthority when a person is held to answer for an
act that was legally permissible at the outset but was retroactively made illegal. Thisprinciple is
reflected by the prohibition against Ex Post Facto Laws in the U.S. Constitution.
For similar reasons, the rule of law is abridged when the government attempts to punish
someone for violating a vague or poorly worded law.Defined laws confer too much discretion
upon government officials who are charged with the responsibility of prosecuting individuals for
criminal wrongdoing.
The more prosecutorial decisions are based on the personal discretion of a government official,
the less they are based on law.
For example, the due process clause of the Fifth and Fourteenth Amendments requires
that statutory provisions be sufficiently definite toprevent Arbitrary or discriminatory

enforcement by a prosecutor. Government officials must not be given unfettered discretion to
prosecute individuals for violating a law that is so vague or of such broad applicability that
evenhanded administration is not possible.
Thus, a Floridalaw that prohibited Vagrancy was held void for vagueness because it was s
o generally worded that it encouraged erratic prosecutions andmade possible the punishment of n
ormally innocuous behavior .
Wellestablished and clearly defined laws allow individuals, businesses, and other entities
to govern their behavior accordingly . Before the government may impose civil or criminal
liability, a law must be writtenwith sufficient precision and clarity that a person of ordinary
intelligence will know that certain conduct is forbidden. When a court is asked to shut down a
paint factory that is emitting pollutants at an illegal rate, for example, the rule of law requires the
government to demonstrate thatthe factory owner failed to operate the business in accordance
with publicly known environmental standards.
Rule Under Law
The rule of law also requires the government to exercise its authority under the law. This
requirement is sometimes explained with the phrase"no one is above the law." During the
seventeenth century, however, the English monarch was vested with absolute sovereignty,
includingthe prerogative to disregard laws passed by the House of Commons and ignore rulings
made by the House of Lords. In the eighteenthcentury, absolute sovereignty was transferred from
the British monarchy to Parliament, an event that was not lost on the colonists who
precipitated the American Revolution and created the U.S. Constitution.
Under the Constitution, no single branch of government in the United States is given
unlimited power. The authority granted to one branch ofgovernment is limited by the authority
granted to the coordinate branches and by the Bill of
Rights, federal statutory provisions, andhistorical practice. The power of any single branch of go
vernment is similarly restrained at the state level.
During his second term, President Richard Nixon tried to place the Executive
Branch of the federal government beyond the reach of legalprocess. When served with a
subpoena ordering him to produce a series of tapes that were anticipated to link him to the
Watergate conspiracy and cover-up, Nixon refused to comply,
asserting that the confidentiality of these tapes was protected from disclosure by an
absolute and unqualified Executive-Privilege. In united states Nixon, the Supreme

Court disagreed,compelling the president to hand over the tapes because the Constitution forbids
any branch of government from unilaterallythwarting the legitimate ends of a criminal investigati
on.
Members of the state and federal judiciary face a slightly different problem when it
comes to the rule of law. Each day judges are asked tointerpret and apply legal principles that
defy clear exposition. Terms like "due process," "reasonable care," and "undue influence" are
not selfdefining. Nor do judges always agree about how these terms should be defined,
interpreted, or applied. When judges issue controversialdecisions, they are often accused of
deciding cases in accordance with their own personal beliefs, be they political, religious, or
philosophical, rather than in accordance with the law.
Scholars have spent centuries examining this issue. Some believe that because the law is
written in such indefinite and ambiguous terms, alljudicial decisions will inevitably reflect the pe
rsonal predilections of the presiding judge. Other scholars assert that most laws can be
interpreted in a neutral, objective, and apolitical fashion even though all judges may not agree on
the appropriate interpretation. In either casethe rule of law is better served when judges keep an o
pen mind to alternative readings of constitutional, statutory, and common-law
principles. Otherwise, courts run the risk of prejudging certain cases in light of their own
personal philosophy.
Rule According to Higher Law
A conundrum is presented when the government acts in strict accordance with wellestablished and clearly defined legal rules and stillproduces a result that many observers consider
unfair or unjust. Before the Civil War, for example, African Americans were systematically
deprived of their freedom by carefully written codes that prescribed the rules and regulations
between master and slave. Even though theseslave codes were often detailed, unambiguous, and
made known to the public, government enforcement of them produced negative results.
Do such repugnant laws comport with the rule of law? The answer to this question
depends on when and where it is asked. In some countriesthe political leaders assert that the rule
of law has no substantive content. These leaders argue that a government may deprive its
citizens of fundamental liberties so long as it does so pursuant to a duly enacted law. At the
Nuremberg Trials, some of the political, military, and
industrial leaders of Nazi Germany unsuccessfully advanced this argument as a defense to

Allied charges that they had committedabominable crimes against European Jews and other
minorities during World War II.
In other countries the political leaders assert that all written laws must conform with
universal principles of morality, fairness, and justice.These leaders argue that as a necessary
corollary to the axiom that "no one is above the law," the rule of law requires that the
government treat all persons equally under the law.
Yet the right to equal treatment is eviscerated when the government categorically denies a
minimal level of respect, dignity, and autonomy to a single class of individuals. These unwritten
principles of equality, autonomy, dignity, and respectare said to transcend ordinary written laws t
hat are enacted by government. Sometimes known as Natural Law or higher law theory, such
unwritten and universal principles were invoked by the Allied powers during the Nuremberg
trials to overcome the defense asserted by the Nazi leaders.
The rule of law is a concept explain in classical time. In Greece Aristotle wrote that "law
should be the final sovereign; and personal rule,whether it be exercised by a single person or a
body of persons, should be sovereign in only those matters which law is unable, owing to the
difficulty of framing general rules for all contingencies." In ancient Rome the Corpus Juris
Civilis established a complex body of proceduraland substantive rules, reflecting a strong
commitment to the belief that law, not the arbitrary will of an emperor, is the appropriate vehicle
for dispute resolution.
In 1215 MagnaCharta reined in the corrupt and whimsical rule of King John by declaring that go
vernment should not proceed except in accordance with the law of the land.
During the thirteenth century, Thomas Aquinas argued that the rule of law represents the
natural order of God as ascertained through divine inspiration and human reason.
In the seventeenth century, the English jurist Sir Edward
Coke asserted that the "king ought to be under noman, but under God and the law." With regard
to the legislative power in England, Coke said that "when an act of Parliament is against
common right and reason, or repugnant, or impossible to be performed, the Common
Law will control it, and adjudge such act to be void." Inthe United States, Alexander
Hamilton applied the rule of law to the judiciary when he argued in The Federalist, no. 78, that
judges "have neither Force nor Will, but merely judgment."

Despite its ancient history, the rule of law was not celebrated in all quarters. The
nineteenth-century English philosopher Jeremy Bentham
described the rule of law as "nonsense on stilts." The twentieth century saw its share of political l
eaders who oppressed persons or groupswithout warning or reason, governing as if no such thing
as the rule of law existed. For many people around the world, the rule of law isessential to freedo
m.

Further readings
Cass, Ronald A. 2001. The Rule of Law in America. Baltimore: Johns Hopkins Univ. Pr
ess.
Hamilton, Alexander, James Madison, and John Jay. 1787–88. The Federalist Papers.
Reprint, edited by Gary Wills, New York: BantamBooks, 1988.
Komesar, Neil K. 2001. Law's Limits: The Rule of Law and the Supply and Demand of
Rights. New York: Cambridge Univ. Press.
Michener, Roger, ed. 1995. The Balance of Freedom: Political Economy, Law, and Le
arning. New York: Paragon House.
Pilon, Roger. 2000. The Rule of Law in the Wake of Clinton. Washington, D.C.: Cato In
stitute.
Scalia, Antonin. 1989. "The Rule of Law as a Law of Rules." University of Chicago La
w Review 56.
Sirica, John. J. 1979. To Set the Record Straight: The BreakIn, the Tapes, the Conspirators, the Pardon. New York: Norton.
Smith, Steven. 1995. "Nonsense and Natural Law." Southern California Interdisciplin
ary Law Journal 4.
Stoner, James. 1992. Common Law and Liberal Theory. Lawrence: Univ. Press of Kan
sas.
Wood, Diane P. 2003. "The Rule of Law in Times of Stress." University of Chicago La
w Review 70.
Cross-references
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group,
Inc. All rights reserved.

RULE OF LAW. Rules of law are general maxims, formed by the courts, who having o
bserved what is common to many particular cases,announce this conformity by a m
axim, which is called a rule; because in doubtful and unforeseen cases, it is a rule fo
r their decision; itembraces particular cases within general principles. Toull.

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