Rule of Law
Photo: New Yorker
Rule of Law is one of five limits on government featured in the KTB Prep American Government and Civics series designed to acquaint users with the origins, concepts, organizations, and policies of the United States government and political system. The goal is greater familiarization with the rights and obligations of citizenship at the local, state, national, and global levels and the history of our nation as a democracy.
Limits on Government
Throughout history, there have been governments that had too much power and
ended up abusing that power. They limited people’s freedom, mistreated people, and even committed mass murders. In some places, that still happens today. Government isn’t evil—but the people who run governments do need to be kept in check so they can’t abuse their power. There are 5 recognized limits on power in Republican governments our Constitution ensures:
- Rule of Law
- Separation of Powers
- Consent of the Governed
- Majority Rule with Minority Rights
- Constitutionalism
Rule of Law
The World Justice Project (WJP) defines rule of law as a durable system of laws institutions, norms and community commitment that delivers:
- Accountability – The government as well as private actors are accountable under the law
- Just laws – The laws are clear, publicized, and stable; are applied evenly; and protect fundamental rights, including the security of persons and contract, property, and human rights.
- Open government – The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
- Accessible justice – Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.
The WJP has identified eight factors that are important in determining whether there is rule of law.
Constraints on Government Power
What is the extent to which those who govern are bound by law? What are the means, both constitutional and institutional, by which the powers of the government and its officials and agents are limited and held accountable under the law? Are there robust non-governmental checks on the government’s power, such as a free and independent press? Is authority distributed, whether by formal rules or by convention, in a manner that ensures that no single organ of government has the practical ability to exercise unchecked power? This factor addresses whether:
- Government powers are effectively limited by the legislature
- Government powers are effectively limited by the judiciary
- Government powers are effectively limited by independent auditing and review
- Government officials are sanctioned for misconduct
- Government powers are subject to non-government
- Transition of power is subject to law
Absence of Corruption
Is there an absence of corruption in a number of government agencies? How many possible situations in which corruption – from petty bribery to major kinds of fraud – can occur? The factor considers three forms of corruption: bribery, improper influence by public or private interests, and misappropriation of public funds or other resources, to determine whether government officials in the executive, judicial, legislative branches along with police and military do not use their office for private gain.
Open Government
WJP defines open government as a government that shares information, empowers people with tools to hold the government accountable, and fosters citizen participation in public policy deliberations. The factor determines whether basic laws and information on legal rights are publicized, and evaluates the quality of information published by the government. It also measures whether requests for information held by a government agency are properly granted. It assesses the effectiveness of civic participation mechanisms–including the protection of freedoms of opinion and expression, assembly and association, and the right to petition, and whether people can bring specific complaints to the government.
Fundamental Human Rights
A system of positive law that fails to respect core human rights established under international law is at best “rule by law”, and does not deserve to be called a rule of law system. This factor evaluates level of adherence to the following fundamental rights:
- Equal treatment and absence of discrimination
- The right to life and security of person is guaranteed
- Due process of law and rights of the accused
- Freedom of expression and opinion is effectively guaranteed
- Freedom of belief and religion is effectively guaranteed
- Freedom from arbitrary interference is effectively guaranteed
- Freedom of assembly and association is effectively guaranteed
- Fundamental labor rights are effectively guaranteed
Order and Security
Society must assure the security of persons and property. Security is one of the defining aspects of any rule of law society and a fundamental function of the state. It is also a precondition for the realization of the rights and freedoms that the rule of law seeks to advance. There are three dimensions that cover various threats to order and security: crime (particularly conventional crime), political violence (including terrorism, armed conflict, and political unrest), and violence as a socially acceptable means to redress personal grievances (vigilante justice).
Regulatory Enforcement
What is the extent to which regulations are fairly and effectively implemented and enforced. Regulations, both legal and administrative, structure behaviors within and outside of the government. Neither what to regulate nor how much to regulate is the issue as much as implementation and enforcement is. While there are areas that all countries regulate to one degree or another such as public health, workplace safety, environmental protection, and commercial activity; strong rule of law when it comes to regulations primarily assesses whether:
- Government regulations are effectively enforced
- Government regulations are are applied and enforced without improper influence
- Administrative proceedings are conducted without unreasonable delay
- Due process is respected in administrative proceedings
- The government does not expropriate without adequate compensation
Civil Justice
Ordinary people should be able to resolve their grievances peacefully and effectively through the civil justice system. The delivery of effective civil justice requires:
- People’s ability to assess and afford civil justice.
- Civil justice being free of discrimination
- Civil justice is free of corruption
- Civil justice is free of improper government influence
- Civil justice is not subject to unreasonable delays
- Civil justice is effectively enforced
- Alternative Dispute Resolution is accessible, impartial , and effective
Criminal Justice
An effective criminal justice system is a key aspect of the rule of law, as it constitutes the conventional mechanism to redress grievances and bring action against individuals for offenses against society. Criminal justice systems are considered effective when the:
- Criminal investigation system is effective
- Criminal adjudication system is timely and effective
- Correctional system is effective in reducing criminal behavior
- Criminal justice system is impartial
- Criminal justice system is free of corruption
- Criminal justice system is free of improper government influence
- Rights of both the victims and accused are protected via due process
Majority Rule With Minority Rights
