The Rule of Law: A Primer and a Proposal

• Author: Captain Dan E. Stigall
• Pages: 06

92 MILITARY LAW REVIEW [Vol. 189

THE RULE OF LAW: A PRIMER AND A PROPOSAL

CAPTAIN DAN E. STIGALL*

1. Introduction

   Since the attacks of 11 September 2001 and the realization that weakened states and dictatorships serve as potential sources of terrorist violence and other threats to national security, U.S. foreign policy has shifted to incorporate state-building as a means to build democracy and eliminate potential threats.1 A key focus of this new strategy is the development of the rule of law abroad.2

   Today in Iraq, according to the Department of State Office of the Inspector General, there are at least nineteen entities engaged in what have been termed "rule-of-law activities."3 In discussing such activities,

   the report of the Inspector General notes that there is no commonly agreed upon definition for the rule of law.4 In fact, a solid definition of the rule of law remains elusive for practitioners and academics alike. As one scholar noted, "Invocations of the Rule of Law are sufficiently meaningful to deserve attention, but today are typically too vague and conclusory to dispel lingering puzzlement."5

   In spite of the confusion as to its meaning, the use of the phrase "rule of law" has been on the increase in recent years. Professor Brian Tamanaha, a scholar on the subject, has noted that the rule of law stands in the peculiar state of being the preeminent legitimating political ideal in the world today, without agreement on precisely what it means.6

   International actors seeking to implement the rule of law in other countries, however, must have a solid definition and established criteria by which to assess to their progress, or lack thereof, in this endeavor. Such a definition and criteria must be capable of objective analysis and must also be functional in a variety of legal and cultural settings.

   This article addresses the various definitions and conceptualizations of the rule of law as articulated by legal scholars and rule of law practitioners. The article goes on to discuss the rule of law as defined by government entities engaged in activities involving the rule of law, thereby demonstrating dissonance in opinion as to what the rule of law actually means. Finally, the article proposes a framework for a single, uniform definition of the rule of law, one which can be used by a variety of governmental actors engaged in rule of law development in a variety of countries with varying legal systems.

2. Defining the Rule of Law

   Before one can effectively implement the rule of law, it is logical to first ascertain what the term means. There is no adequate method of measuring its growth or discerning its presence without defining what it is. However, such a task is deceptively complex. The burgeoning literature on this topic reveals a plurality of competing definitions. As a result, any discussion about the meaning of the phrase reveals the great difficulty that exists in concisely revealing the true nature of this important idea.

   Professor John V. Orth, when discussing the origins of the rule of law, noted that "[A]lthough the general idea of a rule-based state is as old as the Romans, the specific phrase 'the Rule of Law' was first popularized only in the last half of the nineteenth century by [an Oxford academic named] A.V. Dicey."7 Dicey declared that two features characterized the political institutions of England: the supremacy of the central government, and what he called "the Rule of Law."8 Dicey viewed the rule of law as consisting of three principal ideas: (1) no one can be punished or assessed damages for conduct not definitely forbidden by law; (2) all legal rights and liabilities are determined by the ordinary court system; and (3) all individual rights are derived from the ordinary law of the land rather than a written constitution. In that regard, Dicey considered the English Constitution to be the product of courts rather than the source of the courts' jurisdiction.9

   Since Dicey's initial discussion of the concept, legal scholars have expounded on the idea and various conceptions or definitions of the rule of law have been formulated. In theoretical terms, scholars maintain a formalist view and a substantive view of the rule of law. The formalist definition is procedural in nature, viewing the rule of law as a situation in which a government acts in accordance with predetermined rules or laws.10 The focus of the formalist conception of the rule of law is on the form and source of laws and the state's conformance therewith. The

   substance of those laws is of secondary (if any) concern.11 Therefore, from a purely formalist perspective, it is incorrect to conflate democracy or any substantive human right with the rule of law. The rule of law exists when laws are in place and governments obey them.

   Scholars in this school of thought have noted that certain elements must exist within the legal system of any government in order for the rule of law to exist. Laws must be prospective, general, clear, public, and relatively stable. Laws must not require the impossible and there must be consistency between the existing rules and the actual conduct of governmental actors. Likewise, the government must have an independent judiciary, open and fair hearings without bias, and review of legislative and administrative officials and limitations on the discretion of police to insure conformity to the requirements of the rule of law.12

   The formalist definition of the rule of law meets the most basic understanding of the modern view of the concept: the state is "subject to a cordon of constraints" that is embodied in the law.13 Although this basic tenet is not argued by those holding more substantive conceptualizations of the rule of law, the purely formalistic view is

   criticized for being morally neutral or so devoid of substance that is always in danger of collapsing into tyranny.14

   Substantive definitions of the rule of law, on the other hand, begin from the same premise as the formalist view, that the government must abide by its rules, but also incorporate certain substantive requirements such as human rights or democratic principles.15 Tamanaha notes that the Declaration of the 1990 Conference on Security and Cooperation in Europe, which had representatives from many Western European countries as well as the United States, expressly stated:

   [T]he rule of law does not mean merely a formal legality which assumes regularity and consistency in the achievement and enforcement of democratic order, but justice based upon the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expressions. . . . [D]emocracy is an inherent element in the rule of law.16

   From a practice-based perspective, definitions can be divided into "ends based" and "institutional" definitions of the rule of law.17 Ends-based definitions of the rule of law focus on the desired results of the rule of law and measure success accordingly. Rachel Kleinfeld, co-director of the Truman National Security Project, lists those desired results under the rubrics of Government Bound by Law; Equality Before the Law; Law and Order; Predictable, Efficient Justice; and Lack of State Violation of Human Rights.18

   The perceived advantage of defining the rule of law by its ends is a greater focus on the attainment of certain societal goals-an emphasis of the ends over the means. However, a focus on the desired ends to the neglect of the institutions can pose practical problems as, for the most part, the ends sought by rule of law reform can only be attained through building effective institutions. Adopting a definition of the rule of law which is too rigorously "ends-based" is akin to planning a journey to Paris without focusing on the plane tickets. If one wants to arrive at the destination, one must first find the proper vehicle to get there.

   Further, international actors must be careful when incorporating into their definitions of the rule of law such nebulous concepts as "human rights." There is existing disagreement on which human rights are universal and as to what constitutes a human right.19 Even if a certain

   right is agreed to be a universal human good, it must be remembered that cultural, ethnic, and legal differences in various countries can impact the way in which such a right is accepted and interpreted.20 Accordingly, attention should be paid to how such terms are used, how they are incorporated into any operational definition of the rule of law, and how such ideas can be practically implemented across a broad range of legal systems. In this regard, it should be emphasized that, based on the nature of the work, the majority of operations involving rule of law development will take place in the Middle East and elsewhere-places that do not necessarily share the same intellectual history or cultural mores as Western countries.

   In contrast to the ends-based definition of the rule of law, the institutional approach focuses on the governmental institutions which a society must possess to obtain the rule of law. Generally, these institutions are broadly categorized as law, a judiciary, and a force

   capable of enforcing laws.21 However, the institutional approach recognizes that there is an archipelago of supporting institutions that are necessary for the proper functioning of the basic three and which must share the focus of development.22 For instance, Kleinfeld notes:

   Laws are supported by institutions ranging from legislatures to land cadastres and notary publics. The judiciary is reliant on magistrates' schools, law schools, bar associations, clerks and administrative workers, and other supporting groups. Police require prisons, intelligence services, bail systems, and cooperative agreements with border guards and other law enforcement bodies, among other institutions. As new supporting institutions are discovered and deemed to be essential, they are...