Author: Curt Doolittle

THE CORRECT ANSWER
(a) europeans apply the terms philosophy and law to other civilizations when they are unequal in practice. European traditional law is almost five thousand years old – beginning on the steppe. It is, in practice, a prohibition on authority, including a prohibition on arbitrary discretion, and a demand for consent of the people – or at least the warriors, and the aristocracy. So instead, there are rules by which different polities, states, empires, federations, and civilizations limit the behavior of both public and private people. We only call these other systems ‘law’ by analogy because they serve the same purpose of establising RULES the violation of which may incur costs of restitution and punishment. This same ambiguity applies to the term Rule of Law – where, at least until the europeans (greeks formalized it).

PART I – CRITERIA FOR RULE OF LAW (vs Rule by Discretion)

Under Rule of Law, there are several criteria that legislation, regulation, and findings of the court must meet to be considered legitimate.

While different legal scholars might enumerate these criteria differently, here’s a comprehensive list that captures the essential elements:

Legality (Process Legitimacy) : Laws must be properly enacted through recognized legislative processes and in compliance with existing legal frameworks.

Publicity: Laws must be made public, ensuring that citizens are aware of the legal requirements and can comply with them.

Prospective Application: Laws should apply to future actions, not retroactively. This means laws cannot penalize actions that were legal at the time they were committed.

Clarity: Laws must be clear and precise, providing citizens with an understandable guide to their rights and obligations.

Consistency: The legal system should be coherent, with laws being consistent with one another and not contradictory.

Non-Contradiction: A law should not require people to do something that is simultaneously forbidden or forbid something that is simultaneously required.

Possibility of Compliance: Laws should be realistic and feasible, allowing people the ability to comply.

Stability: Laws should be relatively stable and not subject to frequent changes, ensuring legal certainty.

General Application: Laws should apply generally, not targeting specific individuals or groups unfairly.

Equality Before the Law: All individuals should be treated equally under the law, without discrimination.

Due Process: Legal processes should be fair, with individuals having the right to a fair hearing, representation, and an appeal.

Proportionality: Penalties or legal consequences should be proportionate to the offense, not excessively harsh or lenient.

Protection of Fundamental Rights: Laws must respect and protect fundamental human rights and freedoms.

Accountability: Lawmakers and enforcers (government and judiciary) should be accountable under the law.

Separation of Powers: A balance and separation between legislative, executive, and judicial powers to prevent the concentration of power.

Judicial Review: There should be mechanisms for reviewing the legality and constitutionality of laws.

These criteria are designed to ensure that the legal system is just, accessible, and effective in maintaining order and protecting rights within a society. They are fundamental to upholding the Rule of Law in democratic societies.

PART II – HIERARCHY OF STRICTNESS OF RULE OF LAW

To assess claims about the Rule of Law, it’s important to understand the different ways this concept is defined and interpreted. Here, we’ll contrast several prominent definitions of the Rule of Law, which should help in evaluating whether such claims hold true within each framework:

1. Formalist (or Procedural) Definition
Essence: Emphasizes the way laws are made and applied rather than the content of the laws themselves.
Key Features: Laws should be general, public, clear, stable, and applied evenly. This definition stresses the importance of legal processes, procedural fairness, and equality before the law.
Assessment: Claims of the Rule of Law are true if laws are procedurally sound, consistently applied, and administered through an impartial and competent judiciary.

2. Substantive (or Material) Definition
Essence: Focuses on the content of laws and whether they uphold certain principles, such as justice, rights, and morality.
Key Features: Laws should protect fundamental rights, including property rights, personal liberties, and political freedoms. The Rule of Law is not just about procedures but also about the fairness and justice of the laws themselves.
Assessment: Claims of the Rule of Law are true if laws are not only procedurally fair but also substantively just, respecting and protecting individual rights and freedoms.

3. Rule of Law by Natural Law (Local)
Essence: Based on the philosophy that laws should reflect certain universal moral principles inherent in human nature.
Key Features: Laws should align with moral principles that are discernible through human reason and empirical evidence of societal cooperation.
Assessment: Claims of the Rule of Law are true if laws are derived from and consistent with Natural Law principles, reflecting moral and cooperative norms universally applicable to human societies.

4. Rule of Law with Concurrency and Commonality (Scale)
Essence: Extends the Rule of Law by Natural Law to include mechanisms ensuring broad-based consensus (Concurrency) in legislation and consistency (Commonality) in judicial decisions.
Key Features: Laws should be the product of agreement across different societal segments (Concurrency), and judicial decisions should be based on common principles derived from court findings (Commonality).
Assessment: Claims of the Rule of Law are true if laws are made with wide-ranging societal agreement and if judicial decisions are consistent and based on common legal principles, both reflecting empirical evidence of societal consent.

Conclusion
Evaluating claims of the Rule of Law requires an understanding of the specific definition being applied. Each definition has distinct criteria for what constitutes the Rule of Law. The Formalist definition focuses on legal processes, the Substantive definition on the content of laws, the Natural Law definition on the moral basis of laws, and the Concurrency and Commonality definition on empirical evidence of societal consensus and judicial consistency. Understanding these nuances is key to assessing the validity of Rule of Law claims within different legal and philosophical contexts.

PART III – DEFINITIONS

Concurrency in Legislation
Concurrency refers to the requirement for multiple classes and regions, representing different polities within a geographical area, to reach agreement for legislation to pass. This concept is evident in bicameral or multicameral legislative systems, where different houses of government represent various classes or regional interests. The goal is to ensure that legislation (via-positiva) reflects a broad consensus across different segments of society, including the aristocracy, nobility, middle class, working class, and other demographics.

Concurrency is the reason for houses for states, and a house for the property owners (business), and we failed to add a house for the common man and woman that had previosly be provide representation in the state by the church clerisy.

In effect, Concurrency is a prohibiton on majority democracy as much as Rule of Law is a prohibition on discretionary authority. Concurrency protects the rights of minorities from the will of the masses.

Commonality in Judicial Decisions
Commonality involves ensuring that formal codes, laws, and legislation used in courts for dispute resolution (via-negativa) are derived from a common agreement reflected in the findings of the courts. This principle ensures that judicial decisions are not arbitrary but are based on a shared understanding and application of legal principles across different cases and contexts.

Natural Law and Empirical Evidence
Natural Law is understood as the empirical evidence that successful cooperation within a society requires adherence to certain behavioral laws of nature. Under the rule of law in a Natural Law framework, both legislation (via-positiva) and judicial decisions (via-negativa) must be grounded in empirical evidence of the consent of the governed, as demonstrated through their behavior.

Narrowed Rule of Law By Natural Law
As such, the Rule of Law encompasses not only the procedural fairness and consistency of laws but also their legitimacy and alignment with the constraints set by the constitution of the state. In a republic grounded in Natural Law, the constitution should reflect both the empirical principles of Natural Law and the mechanisms of obtaining consent through demonstrated behavior (empirical evidence) in both legislative (via-positiva) and judicial (via-negativa) processes.

This understanding places a significant emphasis on empirical evidence and broad-based consent as foundational to the legitimacy and effectiveness of laws and governance structures in a republic. It highlights the importance of ensuring that laws and legal decisions are not only procedurally sound but also substantively representative of the will and cooperation of the diverse segments of society.

PART IV – GOVERNMENT AS AN APPLIED SCIENCE OF COOPERATION

Rule of Law in the Context of Natural Law, Concurrency, and Commonality
Foundational Principles: The Rule of Law, underpinned by Natural Law, asserts that laws should be based on empirical evidence reflecting the natural behavioral laws necessary for societal cooperation.

Concurrency in Legislation: This aspect involves the requirement for broad consensus in the legislative process, ensuring that laws (via-positiva) are agreed upon by various social classes and regional representations. This consensus is critical for the legitimacy and acceptance of laws, reflecting the diverse interests and perspectives within the society.

Commonality in Judicial Decisions: Commonality requires that judicial decisions and dispute resolutions (via-negativa) are consistent and based on common principles derived from the aggregated findings of the courts. This consistency ensures that legal interpretations and applications are uniform and not subject to arbitrary judgment.

Empirical Basis of Consent: Both legislative and judicial processes must be grounded in empirical evidence of the consent of the governed. This evidence is demonstrated through behavior, ensuring that laws and legal decisions align with the will and cooperative norms of the society.

Constitutional Constraints: The Rule of Law mandates adherence to a constitution that reflects Natural Law principles and the empirical consent of the people. This constitution sets limits on the discretion of the government, aligning it with the Natural Law and the empirically demonstrated will of the people.

Legitimacy and Representation: The legitimacy of laws under this framework is not solely derived from procedural correctness but also from their substantive representation of the consent and cooperation of the governed, as evidenced by empirical measures.

In summary, the Rule of Law, in this context, is a principle that goes beyond procedural fairness and legal consistency. It emphasizes the importance of laws being grounded in Natural Law (as empirically observed in the construction of legislation and decisions of dispute resolution), validated by empirical evidence of societal consent, and shaped through processes that ensure broad-based agreement across different societal segments. This approach seeks to guarantee that laws are not only legally sound but also legitimately reflect the cooperative spirit and diverse interests of the populace.

SO NO:
Issuing arbitrary COMMANDS and calling them laws by analogy does not equal discovering dispute reolutions (negativa) and producing legislation and regulation (positiva).

Discretionary rule that is unlimited is not anything close to rule of law (Russia, China etc)

So no, there are very few instances of rule of law.

In fact, even among europeans, only americans have a constitution of natural law under concurrency and commonality where the people are soverign. In the UK and Canada the Parliament is soverign – but sovereign by commonality and concurrency. In the continental system of law (started by napoleon), the government is sovereign.

This is why, if you read constitutions around the world most of them are wish lists and the american is instead a set of prohibitions against the state and a system the state must follow.

Apologies for cutting this long post short but I’ve already written chapters on this subject and I feel this should be enough for an educated audience.

Cheers

Curt Doolittle
The Natural Law Institute
The Science of Cooperation

Reply addressees: @TheWorthyHouse