Rule of law
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The rule of law is the legal principle that the laws of the land apply to everyone in equal measure, with no exceptions.
In What Do We Mean by the Rule of Law? Richard A Epstein highlights several principles constituting what is known as the rule of law:
- Individual legal decisions should be derived from general legal principles. This means that all decisions should be made concerning rules that are to be applied to all equally. This stops the arbitrary application of the law by unaccountable rulers/judges. This is the essence of rule of law.
- Like cases should be treated alike In some ways a subset of the rule above, but more specifically it targets the rules themselves. The same rules should be applied to all people regardless of religion, race, gender, or position within the government. An interesting example Epstein uses here is the "grandfather clauses" in the southern states in the US in the early 1900s. The rule stated that anyone can vote whose grandfather was entitled to vote. Applied to all this rule discriminated against Negroes whose grandfathers were not eligible to vote. Therefore a definite rule that is applied to all equally can nonetheless be in breach of the rule of law. In the United States Constitution, this principle is called "equal protection".
- Audi alterum partem and Nemo judex sua causa A fundamental principle of law that requires all people subject to legal proceedings to make their case and be heard. Also, the right of people to have their proceedings tried by an unbiased judge is a very important part of the rule of law.
- Restrictions against retrospective laws No one can be held liable for doing something that was not illegal at the time it was done. This is a more specific application of the first principle. People should be entitled to rely on the laws as they stand without having the law change to hold them liable for offenses. This means that what is called an ex post facto law is forbidden.
The significance of the rule of law
The significance is that laws govern society just as laws govern nature, and these laws apply to lawmakers and judges as much as to ordinary people. Disregarding the rule of law leads to a state of anarchy or mob rule. The rule of law is essential to democracy and to liberty. If judges apply laws arbitrarily or the laws themselves are arbitrary, a situation arises whereby no one can accurately predict the legal consequences of any action.
A significant consequence of the rule of law is that it creates legitimate expectations: all members of a democracy have the right to expect that they will be treated according to the rule of law.
- Tom Bingham: 'The Rule of Law' for a concise and accessible introduction to the Rule of Law. Bingham was the senior law lord in the UK from 2000-2008.
- A. V. Dicey's 'An Introduction to the Study of the Law of the Constitution'