Rule of law

What is the rule of law?

Rule of law definitions vary. In the thirteenth century, philosopher Thomas Aquinas argued that the rule of law is a representation of the natural order of God, which natural order is ascertainable through divine inspiration and human reason. Edward Coke, an English jurist said that the “king ought to be under no man, but under God and the law” and that therefore, “when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an act to be void”. Alexander Hamilton, in reference to the application of the rule of law in judicial decisions, said that judges “have neither Force nor Will, but merely judgment”.

In the 19th century, English philosopher Jeremy Bentham described the rule of law as “nonsense on stilts.” Aristotle, however, said that “law should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign in only those matters which law is unable, owing to the difficulty of framing general rules for all contingencies.”

The rule of law is often a controversial topic.  Its controversy is in its use in different contexts. It can be used in the following contexts:

  1. Rule according to law
  2. Rule under law
  3. Rule according to a higher law

Rule according to law emphasizes the fact that the law is the alpha and omega – No person shall be ordered by government in a civil or criminal matter to do or not to do something except to the extent defined in clearly and expressly stated laws.

Rule under the law is the assertion that no person or arm of government is above the law.

Rule according to a higher law means that no law may be enforced by a higher law unless it conforms to certain unwritten universal principles of fairness, morality and justice; principles which are believed to transcend human legal systems.

Rule according to law

To understand rule according to law, the difference between power, will, force on one hand and the law on the other hand must be pointed out. When a government official makes a decision without any backing of law, they do so merely by the power they hold and with the force of personal will. This is contrary to what should be done: government officials should make decisions pursuant to an express provision of law. That way, they are said to have acted within the rule of law.

No person may be prosecuted and punished if there is no law making provision for that crime and punishment. When a person is prosecuted and punished for an offence that is not defined and whose punishment is not prescribed by law, then the government has exceeded its legal authority to punish.

Laws must also be well worded to avoid ambiguity. The government must not punish a person for violating a poorly worded law. Poorly worded laws give the government a lot of discretion on how to define a violation. Laws must be express and unambiguous.

Rule under law

This is commonly explained using the phrase, “no one is above the law”. That is why the law provides for checks and balances, why the people have rights re-stated in the constitution. No arm of government has absolute power.

Of late, judicial activism seems to threaten the rule of law. Where the law provides for “reasonable”, for “due process”, for “undue influence”, and such like terms that may not be definitely defined by law, judicial officers often take it upon themselves to interpret and apply the law subject to their political or personal inclinations. For example, when controversial decisions are to be made, most judicial officers may not agree on how certain legal principles are to be defined and applied and will decide cases according to their personal beliefs, political and religious inclination, philosophical views, and not necessarily the law thus causing a discrepancy in judicial decisions.

That is why laws must be unambiguous. They must be very clear. They must not have two sides. The interpretation must be uniform. Otherwise, courts of law risk having many interpretations based on the judges’ personal philosophies, interpretations which will only apply before those judges and only for the time they will be on the bench.

Rule according to higher law

There are unwritten laws which transcend written laws. These laws are often said to be those which are universally acceptable as good and just laws. They are also said to conform to universally acceptable standards of morality, fairness and justice. For example, it is universally acceptable that no man shall be condemned unheard. Even though most states have taken to have the law written in their statutes, it is universally acceptable that every accused man must be heard before judgment is passed against them.

Even where laws seem to be oppressive, for example, laws that permit slavery, genocide or torture of other human beings, they are said to be in contravention of higher laws and therefore against the rule of law. Repugnant laws are also against the rule according to higher law. Cultural practices like the killing of pregnant unmarried girls and twins are against the rule of law.

Therefore, laws which when applied result into an unfair or unjust scenario, are against the rule of law. For example, before the abolition of slave trade, white Americans made laws to subject Africans to slavery. Even though slavery was codified as a law, it subjected other human beings to inhuman degrading treatment and therefore, was against the rule of law. That is why activists against slavery succeeded.

However, some people do not agree with the application of the rule according to higher law. They say that as long as a law is duly enacted, it is binding on all people of that state. During the Nuremberg trials after the Second World War, Nazi German leaders propelled that argument in their defence against charges for annihilation of Jews though they were unsuccessful.

Conclusion

The rule of law is important for the realization of human freedom. When people are governed outside the rule of law, then their rights are not only fictitious but cannot be enforced. Enforcement of laws must not be on the whim of a judge or magistrate or a member of a tribunal.

Laws must be applied as they are on paper. In that application, the spirit, which is the purpose for which that law was made, must be considered together with the letter of the law. Where application of the law is most likely to perpetuate an injustice, then that application must not be adopted.

Let us all agitate for the rule of law. It is the only way we shall enjoy our human rights.

BY SAMALI BITALA

This article appears in our weekly digital law magazine, The Deuteronomy Vol 2, Issue 3 of February 17th 2017

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