Rule of Law

This jurisprudential concept is one of the foundational pillars of democracy; that is, no rule of law, no democracy. At the simplest level the concept of the “rule of law” simply means that not only do laws govern relations between the government and the citizenry, but no one, not even the government, is above the law; everyone must obey the law. (To what extent this concept is implemented in practice in a given society that professes to be a democracy is, of course, a different matter.) However, like the concept of democracy itself, when one probes deeper into the meaning of this concept (rule of law), then one finds important variations depending upon which society one is considering and what time period. For example, in those societies where there are multiple sources of law (e.g. in many countries in Africa and the Middle East where traditional pre-colonial law exists side by side with Western colonially derived law—a situation that may be referred to as jurisprudential pluralism) this concept will have different meanings. However, given that our focus is North America, specifically the United States, for our purposes the concept of the rule of law, at the theoretical level, should be understood to carry with it, at the minimum, these subset of contingent conditions (listed in no particular order)—which, needless to say, may not all be necessarily practiced:

· There must be a body of relevant laws that the citizenry must obey, and they must be written clearly without ambiguity; and they must be publicly accessible to everyone—that is, laws must be published in some form so that anyone who wishes to do so can find out what the law is regarding a given matter. Note that accessibility also implies that laws must have sufficient longevity to permit the public to get to know what the law is before it is changed for whatever reason. (For example, adopting a law in one week and then changing it in the next, and then changing it again—and so on—creates uncertainty as to what the law says on a given matter.)

· Laws are applicable only after they have been adopted (so, for example, a person cannot be charged with breaking the law if at the time the person supposedly broke the law, the law was not yet on the books—that is, had not been passed). Note that there can be circumstances where a law is applicable retroactively but not usually in the case of criminal law.

· Laws must be passed by a democratically representative legislative body where these two elements of the political system are in force: the rule of the majority while at the same time protecting the rights of the minority.

· Laws must not exist only for the purpose of creating order and respect for authority; therefore, laws that violate the human/civil rights of the citizenry cannot be considered as inviolable (that is, laws must not be tyrannical).

· Laws must be enforced in a political context where the political system adheres to the concept of separation of powers in which the independence of the judiciary is sacrosanct.

· Laws must be enforced in a legal context where the justice system (police, courts, and prisons) is transparent, efficient, and fair.

· Because we live in a capitalist society, laws must be enforced in a socio-political context where the powerful (the bourgeoisie) do not use their unfair advantage in accessing financial and political resources to cynically manipulate the judicial system for their benefit. In other words, contradictory though this may appear at first glance, laws alone cannot create a just society; therefore, they must be supplemented with a socio-political framework of rules, regulations, institutions, moral traditions, etc. that promote social justice.[1]