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65-457: The Rule of Law Program addresses perceived threats to the rule of law and to constitutional liberties that have resulted from the assertions of expansive presidential authority in the aftermath of the attacks of September 11, 2001 , Congress ’s simultaneous failure to exercise its duties as a separate and independent branch of government, and efforts by both Congress and the President to strip

130-622: A JAG Corps handbook, for judge advocates deployed with the US Army: First the Rule of Law should protect against anarchy and the Hobbesian war of all against all. Second, the Rule of Law should allow people to plan their affairs with reasonable confidence that they can know in advance the legal consequences of various actions. Third, the Rule of Law should guarantee against at least some types of official arbitrariness. Fallon describes five "elements" of

195-414: A compromise had emerged. If administrators adopted procedures that more or less tracked "the ordinary legal manner" of the courts, further review of the facts by "the ordinary Courts of the land" was unnecessary. That is, if you had your "day in commission", the rule of law did not require a further "day in court". Thus Dicey's rule of law was recast into a purely procedural form. James Wilson said during

260-410: A distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land." That is, individuals should be able to challenge an administrative order by bringing suit in a court of general jurisdiction. As the dockets of worker compensation commissions, public utility commissions and other agencies burgeoned, it soon became apparent that letting judges decide for themselves all

325-463: A given situation), but formalists contend that there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. Still, there are other views as well. Some believe that democracy

390-458: A mad dog." and also that, "The people should execute a king who does not protect them, but deprives them of their property and assets and who takes no advice or guidance from any one. Such a king is not a king but misfortune." Other sources for the philosophy of rule of law can be traced to the Upanishads which state that, "The law is the king of the kings. No one is higher than the law. Not even

455-586: A prosecutor in the Oklahoma City bombing case. The Death Penalty Committee is a bipartisan committee of death penalty supporters and opponents who believe that the risk of wrongful executions in the United States is too high. It was formerly known as the National Committee to Prevent Wrongful Executions. The Right to Counsel Committee is co-chaired by Walter Mondale (honorary), former Vice-President of

520-496: A society (including those in government) are considered equally subject to publicly disclosed legal codes and processes. Rule of law implies that every person is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right . Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion". Among modern legal theorists , one finds that at least two principal conceptions of

585-441: Is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries." Others argue that the rule of law has survived but was transformed to allow for the exercise of discretion by administrators. For much of American history, the dominant notion of the rule of law, in this setting, has been some version of A. V. Dicey's: "no man is punishable or can be lawfully made to suffer in body or goods except for

650-450: Is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government ... In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions (according to his own report) "that the law

715-441: Is often regarded as a modern iteration of the ideas of ancient Greek philosophers who argued that the best form of government was rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king , who was above the law. Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own,

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780-426: Is part of the 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. This formal approach allows laws that protect democracy and individual rights, but recognizes

845-532: The Constitution of the Commonwealth of Massachusetts : No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood,

910-547: The Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under

975-565: The U.S. Court of Appeals for the Third Circuit . In the fall of 2010, the Constitution Project initiated an eleven-person Task Force on Detainee Treatment. The Constitution Project is governed by a board of directors . The board is currently chaired by Armando Gomez, a partner at the law firm of Skadden Arps who previously served as an attorney-advisor to the IRS and as chief counsel to

1040-407: The history of ethical idealism includes a variety of philosophers. In some theories of applied ethics , such as that of Rushworth Kidder , there is importance given to such orders as a way to resolve disputes . In law , for instance, a judge is sometimes called on to resolve the balance between the ideal of truth , which would advise hearing out all evidence, and the ideal of fairness. Given

1105-467: The legislature . France was one of the early pioneers of the ideas of the rule of law. The German interpretation is more "rigid" but similar to that of France and the United Kingdom. Finland's constitution explicitly requires rule of law by stipulating that "the exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed." In the United Kingdom

1170-401: The shruti - smriti tradition. The Mahabharata deals with the concepts of Dharma (used to mean law and duty interchangeably), Rajdharma (duty of the king) and Dharmaraja (as Yudhishthir , the eldest of the five Pandava brothers was known) and states in one of its slokas that, "A King who after having sworn that he shall protect his subjects fails to protect them should be executed like

1235-596: The Coalition also joins statements and reports issued by other committees. The Criminal Justice Program seeks to counter a broad-based effort to deny fundamental day-in-court rights and due process protections to those accused of crimes. The Death Penalty Committee of the Criminal Justice Program is co-chaired by Gerald Kogan , former Chief Justice of the Florida Supreme Court , and Beth Wilkinson ,

1300-528: The National Commission on Restructuring the Internal Revenue Service. Other members of the board include: Board members Emeritus include: Rule of law The rule of law is a political ideal that all people and institutions within a country, state, or community are accountable to the same laws , including lawmakers and leaders. It is sometimes stated simply as "no one is above

1365-557: The Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune ( legibus solutus ), but those with grievances could sue the treasury. In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law," meaning that they placed

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1430-582: The Senate under the Impeachment Disqualification Clause of Article I, Section III . The question of whether a president may only be criminally charged if they have first survived an impeachment is presently before the District of Columbia Circuit Court of Appeals for decision in the case of United States of America versus Donald J. Trump (docket no. 23–3228). Scholars continue to debate whether

1495-570: The U.S. Constitution adopted a particular interpretation of the "rule of law", and if so, which one. For example, John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria", and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero , Augustine , Thomas Aquinas , and

1560-859: The United States, William S. Sessions (honorary), a partner at Holland & Knight LLP , former Director of the FBI , and former Chief Judge of the United States District Court for the Western District of Texas , Rhoda Billings , former Chief Justice of the North Carolina Supreme Court , Robert Johnson, District Attorney for Anoka County , Minnesota , and former president of the National District Attorneys Association, and Timothy K. Lewis , counsel at Schnader Harrison Segal & Lewis LLP and former Judge of

1625-648: The United States, including the President , the Justices of the Supreme Court , state judges and legislators, and all members of Congress , pledge first and foremost to uphold the Constitution . These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects

1690-457: The arbitrary use of power." Use of the phrase can be traced to 16th-century Britain. In the following century, Scottish theologian Samuel Rutherford employed it in arguing against the divine right of kings . John Locke wrote that freedom in society means being subject only to laws written by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions on his liberty. "The rule of law"

1755-481: The aristocrats and emperor above the law. In contrast, the Huang–Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to. The Oxford English Dictionary has defined rule of law this way: The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of

1820-412: The collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated

1885-467: The committee have authored columns for major newspapers on watch lists , the state secrets privilege , habeas corpus , and public video surveillance . The Coalition to Defend Checks and Balances is convened to address “the risk of permanent and unchecked presidential power, and the accompanying failure of Congress to exercise its responsibility as a separate and independent branch of government. In addition to publishing its own statements and reports,

1950-450: The commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by

2015-417: The complexity of putting ideals into practice, and resolving conflicts between them, it is not uncommon to see them reduced to dogma . One way to avoid this, according to Bernard Crick , is to have ideals that themselves are descriptive of a process, rather than an outcome. His political virtues try to raise the practical habits useful in resolving disputes into ideals of their own. A virtue , in general,

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2080-579: The concept of popular sovereignty . However, these arguments have been challenged and the present consensus is that upholding an abstract concept of the rule of law was not "the predominant consideration" of the Athenian legal system. Alfred the Great , Anglo-Saxon king in the 9th century, reformed the law of his kingdom and assembled a law code (the Doom Book ) which he grounded on biblical commandments. He held that

2145-425: The constitutionally protected rights of individuals . Likewise, the judicial branch has a degree of judicial discretion , and the executive branch also has various discretionary powers including prosecutorial discretion . The July 1, 2024, Trump v. United States Supreme Court decision held former presidents have partial immunity for crimes committed using the powers of their office. Legal scholars have warned of

2210-570: The courts of their jurisdiction to oversee the actions of the executive and legislative branches. The Liberty and Security Committee of the Rule of Law Program is co-chaired by David D. Cole , professor of law at Georgetown University Law Center , and David Keene , former chairman of the American Conservative Union . The Committee is convened to address the “variety of important questions about how to enhance our security while simultaneously protecting our civil liberties.” Members of

2275-438: The existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights. The best known arguments for the formal interpretation have been made by A.V Dicey, F.A.Hayek, Joseph Raz, and Joseph Unger. The substantive interpretation preferred by Dworkin, Laws, and Allan, holds that the rule of law intrinsically protects some or all individual rights. The functional interpretation of

2340-408: The facts in a dispute (such as the extent of an injury in a worker's compensation case) would overwhelm the courts and destroy the advantages of specialization that led to the creation of administrative agencies in the first place. Even Charles Evans Hughes, a Chief Justice of the United States, believed "you must have administration, and you must have administration by administrative officers." By 1941,

2405-406: The framers of the U.S. Constitution believed that an unjust law was not really a law at all. Some modern scholars contend that the rule of law has been corroded during the past century by the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound . For example, Brian Tamanaha asserts: "The rule of law is a centuries-old ideal, but the notion that law

2470-542: The idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural. The influence of Britain, France and the United States contributed to spreading the principle of the rule of law to other countries around the world. Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey , development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece , Mesopotamia , India , and Rome . The idea of Rule of Law

2535-508: The king." Other commentaries include Kautilya 's Arthashastra (4th-century BC), Manusmriti (dated to the 1st to 3rd century CE), Yajnavalkya-Smriti (dated between the 3rd and 5th century CE), Brihaspati Smriti (dated between 15 CE and 16 CE). Several scholars have also traced the concept of the rule of law back to 4th-century BC Athens , seeing it either as the dominant value of the Athenian democracy , or as one held in conjunction with

2600-433: The law and obey it." (3) The third element is stability. The law should be reasonably stable, in order to facilitate planning and coordinated action over time. (4) The fourth element of the Rule of Law is the supremacy of legal authority. The law should rule officials, including judges, as well as ordinary citizens. (5) The final element involves instrumentalities of impartial justice. Courts should be available to enforce

2665-409: The law and should employ fair procedures. Rachel Kleinfeld defines rule of law in terms of five different "goals": Ideal (ethics) An ideal is a principle or value that one actively pursues as a goal , usually in the context of ethics , and one's prioritization of ideals can serve to indicate the extent of one's dedication to each. The belief in ideals is called ethical idealism, and

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2730-516: The law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion." The rule of law has been considered one of the key dimensions that determine the quality and good governance of a country. Research, like the Worldwide Governance Indicators , defines the rule of law as "the extent to which agents have confidence and abide by

2795-489: The law". The term rule of law is closely related to constitutionalism as well as Rechtsstaat . It refers to a political situation, not to any specific legal rule. The rule of law is defined in the Encyclopædia Britannica as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents

2860-516: The law.)." Among the first modern authors to use the term and give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title, Latin for "the law is king", subverts the traditional formulation rex lex ("the king is law"). James Harrington wrote in Oceana (1656), drawing principally on Aristotle's Politics , that among forms of government an "Empire of Laws, and not of Men"

2925-567: The legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature. The principle was also discussed by Montesquieu in The Spirit of Law (1748). The phrase "rule of law" appears in Samuel Johnson 's Dictionary (1755). In 1776,

2990-592: The necessity as judges to give it a free course." Chief Justice John Marshall (joined by Justice Joseph Story ) took a similar position in 1827: "When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law." Numerous definitions of "rule of law" are used in the United States. An organization's definition might depend on that organization's goal. For instance, military occupation or counterinsurgency campaigns may necessitate prioritising physical security over human rights. Outlines of different definitions are given in

3055-593: The negative impact of this decision on the status of rule of law in the United States. Prior to that, in 1973 and 2000 the Office of Legal Counsel within the Department of Justice issued opinions saying that a sitting president cannot be indicted or prosecuted , but it is constitutional to indict and try a former president for the same offenses for which the President was impeached by the House of Representatives and acquitted by

3120-625: The notion that no one is above the law was popular during the founding of the United States. For example, Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king . For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." In 1780, John Adams enshrined this principle in Article VI of the Declaration of Rights in

3185-402: The punishment of those who commit offenses that are justifiable under natural law but not statutory law. The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable. The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference ... is that, under the rule of law,

3250-561: The rule of law European Convention for the Protection of Human Rights and Fundamental Freedoms says "the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law". In France and Germany the concepts of rule of law ( Etat de droit and Rechtsstaat respectively) are analogous to the principles of constitutional supremacy and protection of fundamental rights from public authorities (see public law ), particularly

3315-429: The rule of law can be identified: a formalist or "thin" definition, and a substantive or " thick " definition; one occasionally encounters a third "functional" conception. Formalist 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. Substantive conceptions of

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3380-593: 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. Most legal theorists believe that the rule of law has purely formal characteristics. For instance, such theorists claim that law requires generality (general rules that apply to classes of persons and behaviors as opposed to individuals), publicity (no secret laws), prospective application (little or no retroactive laws), consistency (no contradictory laws), equality (applied equally throughout all society), and certainty (certainty of application for

3445-635: The rule of law is a long-standing principle of the way the country is governed, dating from England's Magna Carta in 1215 and the Bill of Rights 1689 . In the 19th century classic work Introduction to the Study of the Law of the Constitution (1885), A. V. Dicey , a constitutional scholar and lawyer, wrote of the twin pillars of the British constitution : the rule of law and parliamentary sovereignty . All government officers of

3510-413: The rule of law which serve the purpose of law: (1) The first element is the capacity of legal rules, standards, or principles to guide people in the conduct of their affairs. People must be able to understand the law and comply with it. (2) The second element of the Rule of Law is efficacy. The law should actually guide people, at least for the most part. In Joseph Raz's phrase, "people should be ruled by

3575-462: The rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes. The influence of Magna Carta ebbs and wanes across centuries. The weakening of royal power it demonstrated was based more upon the instability presented by contested claims than thoughtful adherence to constitutional principles. Until 1534, the Church excommunicated people for violations, but after a time Magna Carta

3640-400: The rule of law: It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws. The Roman statesman Cicero is often cited as saying, roughly: "We are all servants of the laws in order to be free." During

3705-740: The rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map at right. Other evaluations such as the World Justice Project Rule of Law Index show that adherence to rule of law fell in 61% of countries in 2022. Globally, this means that 4.4 billion people live in countries where rule of law declined in 2021. The preamble of

3770-536: The same law had to be applied to all persons, whether rich or poor, friends or enemies. This was likely inspired by Leviticus 19:15: "You shall do no iniquity in judgment. You shall not favor the wretched and you shall not defer to the rich. In righteousness you are to judge your fellow." In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates back under

3835-552: The servants of the laws." The rule of law implies that every person is subject to the law, including persons who are lawmakers, law enforcement officials, and judges. Distinct is the rule of man , where one person or group of persons rule arbitrarily. The earliest conception of rule of law can be traced back to the Indian epics Ramayana and Mahabharata - the earliest versions of which date around to 8th or 9th centuries BC although they were written down as texts much later owing to

3900-416: 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". Upholding the rule of law can sometimes require

3965-705: Was approved by the General Court of Catalonia , establishing the submission of royal power (included its officers) to the laws of the Principality of Catalonia . The first known use of this English phrase occurred around 1500. Another early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons : Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there

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4030-406: Was further popularized in the 19th century by British jurist A. V. Dicey . However, the principle, if not the phrase itself, was recognized by ancient thinkers. Aristotle wrote: "It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and

4095-445: Was preferable to an "Empire of Men, and not of Laws". John Locke also discussed this issue in his Second Treatise of Government (1690): The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in

4160-697: Was simply replaced by other statutes considered binding upon the king to act according to "process of the law". Magna Carta's influence is considered greatly diminished by the reign of Henry VI , after the Wars of the Roses . The ideas contained in Magna Carta are widely considered to have influenced the United States Constitution . In 1481, during the reign of Ferdinand II of Aragon , the Constitució de l'Observança

4225-412: Was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and

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