Theme: Constitutional Order

RULE OF LAW

Among modern legal theorists, we will find that at least three common definitions of the rule of law.

1 – Rule of Law: a “Substantive” (Skeptical) or “thick” definition that must preserve certain rights;

2 – Rule by Law: a “Formalist”: (Optimistic) or “thin” definition, that must not preserve any such rights, and;

3 – Rule of Man: a “Functional” (Fictional) or “ultra-thin” definition that requires neither formal process nor substantial rights be respected, and allows government officials great leeway.

The ancient concept of rule OF law can be distinguished from rule BY law, in that, under the rule OF law, the law serves as a check against the abuse of power.

Under rule BY law, the law is a mere tool for a government, that oppresses the population a using legislation as justification for arbitrary commands – a means of violating rights.

Under Rule of Man, there are no checks on power to violate rights.

Rule of Law (By Rights)

1- Substantive (Skeptical) conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. The substantive interpretation holds that the rule of law intrinsically must protect some or all individual rights.

Rule By Law (Rule by Legislation)

2 – Formalist (Optimistic) definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. The formalist interpretation holds 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.

In addition, some theorists hold that democracy(majority) can circumvent both procedure and rights, or construct new rights (rather than privileges).

Why Formalism? Formalism allows laws the pretense of claiming rule of law when rights are not protected by including countries that do not necessarily have such laws protecting democracy or individual rights in the scope of the definition of “rule of law”.

The “formal” interpretation is more widespread than the “substantive” interpretation. 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.

Rule of Man (By Arbitrary Discretion)

3 – The functional (Fictional) interpretation of the term “rule of law”, consistent with the traditional English meaning, 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”.

Closing (Summary)

In other words, there is only one form of rule of law under which no one can override natural rights (life, liberty, property, reciprocity, truth, and duty). Rule by legislation allows either the state, or the body politic to override those rules. And rule by man allows arbitrary discretion on the part of officials (members of the monopoly bureaucracy).