Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

RULE OF LAW

Nnamdi Ebo 2 241x300 Sources of LawLawyer Zone  | By Nnamdi Ebo.

RULE OF LAW.

The rule of law (18c) is a state of order in which events conform to the law. A state of order here means established customary state (especially of society). Also termed supremacy of law – it is the doctrine that every person is subject to the ordinary law within the jurisdiction of a country [e.g. all persons within the Federal Republic of Nigeria are within the Nigerian rule of law]. It is a legal maxim that states no person is immune to the law. The phrase has been used since the 17th century, but the concept can be traced to ancient Greece. Aristotle put it this way: “law should govern”. Rule of law stands in contrast to the idea that the sovereign is above the law (rex lex), a feature of Roman Law and other legal systems.

The rule of law has therefore been described as “an exceedingly elusive notion”90 giving rise to a “rampant divergence of understandings”.91 Aristotle endorsed the rule of law, writing that “law should govern”, and those in power should be “servants of the laws.”92 Cicero wrote, “We are all servants of the laws in order that we may be free.” During the republic, controversial magistrates might be put on trial when their terms of office expired. Under the empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.93Credit for popularizing the expression “the rule of law” in modern times is usually given to A. V. Dicey.94 However, development of the legal concept can be traced through history as far back as Ancient Greece. The rule of law is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: An allusion to the rule of law applying to the Median kingdom is found in the Book of Daniel, where it is stated that not even that king can arbitrarily alter a law he has previously enacted: “The thing stands fast, according to the law of the Medes and Persians, which cannot be revoked.”

Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title is Latin for “the law is king” and reverses the traditional rex lex (“the king is the law”). John Locke also discussed this issue in his Second Treatise of Government (1690). Later, the principle was further entrenched by Montesquieu in The Spirit of the Laws (1748). The supremacy of law is by no means an exclusively western notion: in the Chinese philosophical school of Legalism in the 3rd century BC, Han Fei Zi articulated three principles of governance which states that laws, rather than rulers, run the state, and further that laws be written and be made public.

. In 1215 AD, a similar development occurred in England: King John placed himself and England’s future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta.95 In 1776, the notion that no one is above the law was popular during the founding of the United States, for example Thomas Paine wrote in his pamphlet Common Sense that “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”96 In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish “a government of laws and not of men.”

Brian Tamanaha wrote in his book:97‘Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labeled the formal and substantive approaches. But there are other views as well. Some believe that democracy is part of the rule of law’.

The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: “The difference….is that under the rule of law the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion.”98 Different people have different interpretations about exactly what “rule of law” means. According to political theorist Judith N. Shklar, “the phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general over-use”, but nevertheless this phrase has in the past had specific and important meanings

Among modern legal theorists, most views on this subject fall into three general categories: the formal approach, the substantive approach, and the functional approach. The “formal” interpretation is more widespread than the “substantive” interpretation, and formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law. This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of “rule of law” in countries that do not necessarily have such laws protecting democracy or individual rights.

The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights. In addition to the formal and substantive interpretations of the term “rule of law”, another leading interpretation is the functional definition, which is consistent with the traditional English meaning that contrasts the “rule of law” with the “rule of man.” According to the functional view, a society in which government officers have a great deal of discretion has a low degree of “rule of law”, whereas a society in which government officers have little discretion has a high degree of “rule of law”.99 The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.

The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country.100 Research, like the Worldwide Governance Indicators, defines the rule of law as: “the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence.”101 Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the “Governance Matters 2008”, a World Bank. 2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents have confidence in and abide by the rules of society. The report indicated on a colored map showed that in 2005, the U.S., Canada, UK, Australia, France and Germany were rated the highest while, Colombia, Somalia, DRC, Zimbabwe, Nigeria and some central African countries were rated the lowest. Since then, some Nigerian government officials and politicians have said that Nigeria has come a long way in abiding by the principle of the ‘rule of law’.

All government officers of Nigeria, including the President, the Justices of the Supreme Court, and all members of the National Assembly, pledge first and foremost to uphold the Constitution of the Federal Republic of Nigeria. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government does have considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion and the executive branch also has various discretionary powers including prosecutorial discretion.

Many Asian cultures traditionally view good governance as rule by leaders who are benevolent and virtuous, and therefore rule of law is a governmental principle that many Asians hesitate to embrace. One study indicates that throughout East Asia, only South Korea, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state.102 According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent:

Lawyer zoneIn countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights. In India, the longest constitutional text in the history of the world has governed that country since 1950.

Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, “The rule of law or rather the Constitution is in danger of being supplanted by the rule of judges.”103 Japan had centuries of tradition prior to World War II during which there were laws, but they were not a central organizing principle for society, and they did not constrain the powers of government. As the twenty-first century began, the percentage of people who were lawyers and judges in Japan remained very low relative to Western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.104

In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi, India and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review.105

The UN General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions.106 The Security Council has held a number of thematic debates on the rule of law and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security, children in armed conflict and the protection of civilians in armed conflict. The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda.

A. V. Dicey

British jurist A. V. Dicey popularized the phrase “rule of law” in 1885.107Dicey emphasized three aspects of the rule of law:

(1) No one can be punished or made to suffer except for a breach of law proved in an ordinary court;

(2) No one is above the law and everyone is equal before the law regardless of social, economic, or political status; and

(3) The rule of law includes the results of judicial decisions determining the rights of private persons.108

International Bar Association: The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or “thick” definition of the rule of law:109 An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law.

Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilized society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.

Joseph Raz: In 1977, the influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies.110 Raz’s principles encompass the requirements of guiding the individual’s behavior and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion. Some of Raz’s principles are as follows:

  • That laws should be prospective rather than retroactive.
  • Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
  • There should be clear rules and procedures for making laws.
  • The independence of the judiciary has to be guaranteed.
  • The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
  • The courts should have the power of judicial review over the way in which the other principles are implemented.
  • The courts should be accessible; no man may be denied justice.
  • The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally “is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man”.111

_______________________________________________________

90.  Tamanaha, Brian Z. (2004), On the Rule of Law, Cambridge University Press., p. 9.
  1. Supra above: Tamanaha 2004, p. 9.
  2. Aristotle, Politics 3.16: “it is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.”
  3. Wormuth, Francis. The Origins of Modern Constitutionalism, page 28 (1949)
  4. Bingham, Thomas. The Rule of Law, page 3 (Penguin 2010)
  5. British Library: treasures in full: Magna Carta – English translation
  6. 96. Lieberman, Jethro. A Practical Companion to the Constitution, page 436 (University of California Press 2005)
  7. Tamanaha, Brian. “The Rule of Law for Everyone?”, Current Legal Problems, volume 55, via SSRN (2002)
98. Tamanaha, Brian. On the Rule of Law, page 3 (Cambridge University Press, 2004)
  1. Stephenson, Matthew. “Rule of Law as a Goal of Development Policy”, World Bank Research (2008).
  2. Kaufman, Daniel et al. “Governance Matters VI: Governance Indicators for 1996-2006, World Bank Policy Research Working Paper No. 4280” (July 2007).
  3. Kaufman, Daniel et al. (July 2007).
  4. Chu, Yun-Han et al. How East Asians View Democracy, pages 31-32.
  5. Robinson, Simon. “For Activist Judges, Try India”, Time Magazine (2006-11-08)
  6. Green, Carl. “Japan: ‘The Rule of Law without Lawyers’ Reconsidered”, Speech to the Asia Society (2001-03-14).
  7. Goldsworth, Jeffrey. “Legislative Sovereignty and the Rule of Law” in Sceptical Essays on Human Rights, page 69 (Tom Campbell, Keith D. Ewing, Adam Tomkins eds. Oxford University Press 2001).
106. See United Nations General Assembly Resolutions A/RES/61/39, A/RES/62/70, A/RES/63/128
107. Dicey, Albert. An Introduction to the Study of the Law of the Constitution (1885)
108. Palekar, S. Comparative Politics and Government 64-65 (PHI Learning 2009).
109. Resolution of the Council of the International Bar Association of October 8, 2009; on the Commentary on Rule of Law Resolution, (2005)
110. Raz, Joseph. “The Rule of Law and It’s Virtue”, The Law Quarterly Review, volume 93, page 195 (1977)
111. Raz, Joseph. “The Rule of Law and It’s Virtue”, The Law Quarterly Review, volume 93, page 195 (1977); reprinted by Culver, Keith. Readings in the Philosophy of Law, page 13 (Broadview Press, 1999)

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Legal Method . Book Cover 202x300 Sources of LawCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012
Buy the book, Legal Method  |  Click  Bookshop
Nnamdi Ebo | [email protected]  |  © 2015 Nnamdi Ebo . All Rights Reserved

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