Introduction

From the Summerians through Imperial China to Medieval Europe and down through the present (for many nations, at least), democracy and freedom have not been the norm.  In fact, before the flowering of democracy in the late 18^th century, there had been only three representative governments in the history of the world: Athens, Republican Rome, and the Swiss Cantons.  What has accounted for democracy’s relative success in the past two hundred years? 

The question admits of no easy answers, but one plausible reason is the ascendancy of the ideal of the Rule of Law.  The impetus of the Rule of Law is that people in power cannot be trusted, so they should not have unchecked power.  They should be constrained and, like everyone else, subject to law.  This chapter will flesh out the nature of this constraint by explaining 4 principles of the Rule of Law.  It will then conclude by explaining why the Rule of Law is good. 

Four Principles of the Rule of Law

Constitutionalism

A constitution is important to the Rule of Law because, as its name suggests, it constitutes the government.  It sets out the structure of the government and the process that law-making must follow.  Without a constitution, the people cannot hold governmental leaders accountable.  Imagine a country that has a Legislature and a President.  Generally, the Legislature makes the laws, but suppose one day the President decides to make a law.  If there is no constitution specifying which branch has the law-making power, it will be difficult to challenge the validity of the President’s actions.  Constitutionalism promotes accountability, and leaders who are accountable are more likely to exercise restraint. 

Independent and Robust Judiciary

An independent judiciary means that judges cannot be removed or censured if they rule in a way that the government doesn’t like.  Without an independent judiciary, government officials might never lose in court.  Suppose, for example, that a country passes a law that requires people, even the President, to pay a certain tax.  But the President refuses to pay the tax and he is sued in court.  If the judiciary is not independent, and the president can remove judges whenever he fancies, then the judge who hears the lawsuit might not have the courage to rule against the President and direct him to pay the tax.  Judges should be impartial, and impartiality is fostered by independence. 

It is also important that the judges be competent and not corrupt.  Incompetent judges are unlikely to understand the court process and might take too much time to do their job.  Because “justice delayed is justice denied,” a country’s legal system should be efficient.  Corrupt judges might accept bribes, show favoritism, and rule in ways that are beneficial to themselves, all of which weaken the Rule of Law.  A country can discourage corruption by making sure that the judicial process is transparent—that all hearings are public, all documents filed to the court are public, and the rulings by the judges are public. 

Readable and Accessible Laws

The Roman Emperor Nero was said to post laws high up on pillars where people could not easily read them.  This sort of conduct—making it difficult for citizens to figure out what the laws are—violates the Rule of Law.  If everyone is subject to the law, then everyone should be able to know what the law is; therefore, laws must be publicly available so that anyone who wants to access them, can.  To the extent possible, laws should be written in language that people can understand.  Furthermore, readable and publicly accessible laws are more likely to constrain government leaders because people will know when a leader is acting illegally.  Like a constitution, these sorts of laws promote accountability. 

A country’s laws should also be made through open, deliberative procedures in which citizens can participate.  A law made in secret is likely to reflect only the interests of those in power and not the interests of the entire country, and it is therefore unlikely to constitute any real constraint on governmental leaders.   

Protection of Rights

A country that adheres to the Rule of Law should protect basic rights, either through the Constitution or other laws.  Such protection helps to stop the government from devolving into tyranny.  Among the important rights to be protected are rights of political participation, such as the right to vote, the right to criticize the government, and the right to freely discuss and write about political and social issues.  Take away these rights, and the people will not be able to govern themselves.  Other important rights include the right of people accused of crimes to have a public judicial hearing, the right to trial for the accused, the right to enforcement of contracts, and the right to exclude others from using property that is not their own. 

Why is the Rule of Law Essential?

The Father of the US Constitution, James Madison, once observed, “If men were angels, no government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”  In other words, government must be given enough power to solve problems but not so much power that it can oppress its citizens.  The Rule of Law—embodied in the 4 principles listed above—helps governments to achieve this balance.  Furthermore, the Rule of Law is strongly correlated to democracy and freedom.  The more a country adheres to the Rule of Law, the more democratic and free it is likely to be.