The rule of law in a globalizing world - an Asian perspective.

• Published date: 22 March 2009
• Author: Owada, Hisashi
• Date: 22 March 2009

I. INTRODUCTION

It is fashionable to speak about the importance in today's world of the "rule of law at the national and international levels." On the occasion of the sixtieth anniversary of the United Nations, the 2005 World Summit declared in its 2005 World Summit Outcome that "[w]e [Heads of State and Government] acknowledge that good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger." (1) Based on this recognition, the more than 170 heads of state and government assembled at the United Nations headquarters identified "human rights and the rule of law" as one of the four key areas in which to undertake concrete measures so as to provide multilateral solutions. (2)

What does the "rule of law at the national and international level" signify? Despite the fact that the phrase "the rule of law" is today very much in vogue, the concept itself has been the subject of lively debate in academic circles, as well as among practitioners who are expected to implement the concept in practice. Some even claim that if one were to read "any set of articles discussing the rule of law ... the concept emerges looking like the proverbial blind man's elephant--a trunk to one person, a tail to another." (3)

The concept of the "rule of law," and indeed the term itself, has its origin in the constitutional doctrine of the common law. But even in this rather clearly defined area, the concept has become so overburdened in recent years that one eminent authority, Lord Bingham, has suggested that the phrase "the rule of law" has become meaningless thanks to ideological abuse and general over-use." (4) According to him the concept is described by some as "'an exceedingly elusive notion' giving rise to a 'rampant divergence of understandings' and analogous to the notion of the Good in the sense that 'everyone is for it, but have contrasting convictions about what it is.'" (5) To give an extreme example of this phenomenon, it is well known that in the hotly contested battle before the U.S. Supreme Court in Bush v. Gore, (6) each side tried to argue its own case in the name of "the rule of law." (7)

This state of confusion, already present in the domestic legal sphere, is further exacerbated when one tries to transpose the concept and apply it to the international system of governance. The transposition of this concept, whose origins lay essentially in Anglo-American constitutional doctrine, to the present-day international system raises a number of new issues. For example, can a principle that was originally conceived to control the exercise of power within the domestic constitutional framework, be successfully duplicated in the international legal system where no central power exercises control over the community? If it can, does such a duplication require a reconceptualization of the principle itself in order to adapt it to the different legal conditions of international society? Answering these questions first requires an examination of the proper nature and scope of the rule of law as the concept has been accepted in the traditional context.

Reconceptualization of the rule of law at the international level in turn requires addressing the following two separate but interrelated questions that are especially pertinent in the context of the present-day international system. First, should the rule of law, when applied at the international level, be defined from a formalistic or substantive point of view? In other words, should the concept of the rule of law, when transposed to the international realm, be read narrowly as referring to its formal aspect of "the rule by the laws," or broadly as referring to the substantive content of the law as well? This question has already been hotly debated in the domestic context, but it takes on a new significance in light of the unique role that the rule of law is expected to play at the international level in the present-day world. Second, what entities should be subject to the rule of law in this international context? Is the international rule of law limited in its application to the interrelationship among sovereign states that constitute the international community, or does its application extend to the rights and duties on an international level of individuals, who, after all, are the ultimate addressees of the legal norms in the global community?

II. THE CONCEPT OF THE RULE OF LAW

In answering these questions, the natural starting point is to examine the traditional conception of the rule of law in the domestic sphere. While the concept may be elusive from a theoretical point of view, everyone would agree that the rule of law must contain certain essential elements. For this purpose, it would be useful to start with the famous definition of the rule of law by A.V. Dicey, the nineteenth-century constitutional authority of England. He explained the salient elements of the rule of law as follows:

 When we say that the supremacy or the rule of law is a
                 characteristic of the English constitution, we generally include
                 under one expression at least three distinct though kindred
                 conceptions
                 We mean, in the first place, that no man is punishable or can be
                 lawfully made to suffer in body or goods except for a distinct
                 breach of law established in the ordinary legal manner before the
                 ordinary Courts of the land. In this sense the rule of law is
                 contrasted with every system of government based on the exercise by
                 persons in authority of wide, arbitrary, or discretionary power of
                 constraint
                 We mean in the second place ..., not only that with us no man is
                 above the law, but (what is a different thing) that here every man
                 whatever be his rank or condition, is subject to the ordinary law
                 of the realm and amenable to the jurisdiction of the ordinary
                 tribunals
                 In the third place, [w]e may say that the constitution is
                 pervaded by the rule of law on the ground that the general
                 principles of the constitution (as for example the right to
                 personal liberty, or the right of public meeting) are with us the
                 result of judicial decisions determining the rights of private
                 persons in particular cases brought before the Courts; whereas
                 under many foreign constitutions the security (such as it is)
                 given to the rights of individuals results, or appears to result
                 from the general principles of the constitution. (8)
                

What this boils down to in terms of a core definition of the rule of law can be summarized into the following three elements:

(1) "the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power";

(2) "equality before the law, or the equal subjection of all classes of people to the ordinary law of the land, administered by the ordinary Law Courts"; and

(3) the independence of the courts that secure to individuals their rights, which the law of the constitution represents as the result, not as the source, of such rights. (9)

By identifying these components, Dicey presented the rule of law primarily as a constraint on the arbitrary or disparate exercise of sovereign power over the individual. In this situation, his conception of the rule of law could be described as tending to be formalistic or process-focused. His definition, however, has to be read in the political context of nineteenth-century England. Dicey was discussing the issue of the rule of law in the England of his day, a "country governed ... under the rule of law," where "security [was] given under the English constitution to the rights of individuals." (10) His main concern, therefore, was the way in which the law was made, applied, and enforced in relation to individuals, rather than the actual content of the law. The actual substance of the law, presumably, was outside the main focus of Dicey's thesis. Rather, of paramount importance to him in this process-focused approach was the question of "fundamental principles which are characteristic of a legally ordered community and which provided a ... framework within which particular rules of law operate." (11) It is natural that with such a formalistic approach to the rule of law, no attempt was made to pass a judgment upon the content of the law itself. There is no need for inquiry as to whether the laws themselves are "just" or "unjust," (12) so long as the environment for the rule of law is secured, and the arbitrary exercise of power by the sovereign restrained.

This naturally raises the question as to whether such a formalistic conception of the rule of law is appropriate or adequate in the contemporary setting. If it were, then by implication the actual substance of the law would not factor into any determination of how the rule of law in fact is practiced, so long as the procedural guarantee for the rule of law is met. Yet such an approach would lead to the conclusion that Nazi Germany or the Union of South Africa, under apartheid--to take two extreme examples--were societies governed by the rule of law. (13)

As is clear from the passage quoted above, basic in Dicey's conception of the rule of law is the premise that law is an embodiment of justice in society, as reflected in the general law of the constitution as the guarantor of individual freedom in nineteenth-century England. Thus he declares that "some polities, and among them the English constitution, have not been created at one stroke [but] are the fruit of contests carried on in the Courts on behalf of the rights of individuals." (14) Among those rights that form the premise of the rule of law, Dicey refers to the following:

 General propositions ... as to the nature of the rule of law carry
                 us but a very little way. If we want to understand

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