Is Rule of Law?
Perspectives, Vol. 1, No. 5
are free because we live under civil laws." --- Charles
de Secondat Montesquieu
of law" is one of the much said but little understood
concepts in popular press and daily conversations in China
today. What is rule of law? What is its significance? Does
rule of law mean that there is no "rule of person?"
What are the institutional conditions and cultural content
of rule of law? How do we achieve rule of law? I intend to
tackle these questions in a series of essays. In this essay,
I will focus on the meaning of the rule of law and its values.
In the next essay of this series (to be published in the June
issue of "Perspectives"), I will talk about the
a starting point, I want to point out that when we say "rule
of law" these days, we mean something different from
the instrumentalist conception of "rule by law"
of the legalist philosophers in ancient Chinese history. When
we say "rule of law" today we intend to describe
a key component of the social and political orders found in
the United States and other liberal democratic states of our
time. In other words, by "rule of law" we mean a
western tradition that can be traced back to the Roman republics
and was fully developed by the liberal constitutionalism.
It is characterized, in the words of Max Weber, by "legal
difference between "rule by law" and "rule
of law" is important. Under the rule "by" law,
law is an instrument of the government, and the government
is above the law. In contrast, under the rule "of"
law, no one is above the law, not even the government. The
core of "rule of law" is an autonomous legal order.
Under rule of law, the authority of law does not depend so
much on law's instrumental capabilities, but on its degree
of autonomy, that is, the degree to which law is distinct
and separate from other normative structures such as politics
and religion. As an autonomous legal order, rule of law has
at least three meanings. First, rule of law is a regulator
of government power. Second, rule of law means equality before
law. Third, rule of law means procedural and formal justice.
We will take up these meanings of rule of law one by one.
as a power regulator, rule of law has two functions: it limits
government arbitrariness and power abuse, and it makes the
government more rational and its policies more intelligent.
opposite of rule of law is rule of person. There are two kinds
of rule of person. The first kind is "rule of the few
persons," examples of which include tyranny and oligarchy.
The second kind of rule of person is "rule of the many
persons," an example of which is the ancient Greek democracies.
The common feature of rule of person is the ethos that "what
pleases the ruler(s) is law." That is, under rule of
person, there is no limit to what the rulers (the government)
can do and how they do things.
contrast, a key aspect of rule of law is "limitation;"
i.e., rule of law puts limits on the discretionary power of
the government, including the power to changes laws. This
is why the western juridical tradition is Roman, not Greek.
One of the major problems of ancient Greek democracy is that
its conception of law does not contain the idea of limitation.
The Greek word "eleutheria," commonly translated
as "freedom," connotes a freedom that extends into
the principle that what pleases the people is law. In other
words, there were no limits to the (democratic) governments
of ancient Greece, and the popular will, be it short-term
passion or long-term rationality, would always become law
if the demos so wished. "As soon as law lost its sacred
character, popular sovereignty was placed above the law, and,
by that very act, government by laws was once again fused
and confused with government by men" (Sartori, 1987,
the Greek system, the Roman system of law limited the ability
of the rulers to change laws, and it greatly influenced the
Anglo-Saxon version of rule of law. At the core of the Anglo-Saxon
conception of rule of law is the idea that the discretionary
power of the government should be limited. "[W]henever
there is discretion there is room for arbitrariness, and .
. . in a republic no less than under a monarchy discretionary
authority on the part of the government must mean insecurity
for legal freedom on the part of its subjects" (Dicey,
1982, p. 110). The solution to this problem, say liberal democrats,
is rule of law.
are two common misconceptions in China. First, when some writers
describe "rule of person," they mean only "rule
of the few persons." These writers think that, as long
as we have democracy ("rule of the many"), we have
justice and rule of law. These writers forget that the popular
will can rule with or without constitutional and legal limits.
Without constitutional and legal limits, popular will can
be as destructive as, or even more destructive than, the unfettered
discretion of "the few." Examples include the injustices
of classical Greek democracy, terrors of the French Revolution
and the crimes against humanity committed during the Chinese
Cultural Revolution. Second, some writers in China think that,
as long as laws are passed through democratic procedures,
they represent the general will (a la Rousseau) and therefore
are just laws. These writers forget that "popular will"
is not necessarily "general will" (as Rousseau himself
warned us more than two hundred years ago). Unfettered popular
will can not only deviate from the Rousseauian general will,
it can run against and destroy the general will.
more specific terms, how is government arbitrariness constrained?
The answer lies in several important principles of rule of
law. First, if we are to limit government caprice, rule of
law requires the supremacy of law as opposed to the supremacy
of the government or any political party. To the noted English
jurist A. V. Dicey rule of law means, "in the first place,
the absolute supremacy or predominance of regular law as opposed
to the influence of arbitrary power, and excludes the existence
of arbitrariness, of prerogative, or even wide discretionary
authority on the part of the government" (Dicey, 1982,
if the government is to be restricted in its exercise of discretion,
the government has to follow legal procedures that are pre-fixed
and pre-announced. As F. A. Hayek puts it, rule of law "means
that a government in all its actions is bound by rules fixed
and announced beforehand -- rules which make it possible to
foresee with fair certainty how the authority will use its
coercive powers in given circumstances, and to plan one's
individual affairs on the basis of this knowledge" (Hayek,
1994, p.80). For example, in constitutional and criminal law,
there is a prohibition on "ex post facto" laws,
that is, no one should be punished for a crime not previously
defined in law. In other words, the government cannot simply
define a new crime and apply the new definition retrospectively.
The rationale for this principle is that, first, the government
should not be allowed to abuse its power by punishing individuals
for political or other conveniences; second, it would be grossly
unjust and oppressive for the government to punish someone
for behavior that was not known to be criminal at the time
of commission; third, to so punish individuals would result
in so many uncertainties that it would create great inefficiencies.
of law as a constraint on government power is well recognized,
but its cognitive value in enhancing government's rationality
is often less understood. Rule of law not only limits the
arbitrariness of the government, it also makes the government
more intelligent and articulate in its decision making. For
one example, as Professor Stephen Holmes writes, "[o]nly
a constitution that limits the capacity of political decision
makers to silence their sharpest critics . . . can enhance
the intelligence and legitimacy of decisions made" (Holmes,
1995, p. 8). For another example, the key reason why liberal
democrats do not believe in the pure will theory of legality
is that, without rule of law as a limit, popular will can
easily be corrupted by passions, emotions and short-term irrationalities.
As such, liberal democrats demand rule of law because it helps
us to behave according to our long-term interest and reason.
comment on the relationship between rule of law and liberalism
is due here. Liberalism requires a limited government, and
it naturally finds rule of law (as a regulator of government
power) a necessary institutional arrangement. We can say that
liberalism requires rule of law, and that rule of law is an
institutional realization of liberal ideals. Historically,
however, rule of law existed before liberalism. According
to Dicey, rule or supremacy of law was firmly established
in England before the end of the sixteenth century, when liberalism
as a political and social philosophy had not been completely
born yet -- John Locke was born in 1632 and his Second Treatise
of Government was first published in 1690. However, rule of
law as a constraint on government arbitrariness might have
provided a strong institutional and cultural support for the
birth of liberalism in England, whose core teachings included
the doctrine of limited government and the right of revolution.
second meaning of rule of law, according to Dicey, is equality
before law. "[N]ot only that . . . no man is above the
law, but (what is a different thing) that . . . 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. . . . [T]hough a soldier or a clergyman incurs
from his position legal liabilities from which other men are
exempt, he does not (speaking generally) escape thereby from
the duties of an ordinary citizen" (Dicey, 1982, p. 114-115).
To Dicey, even in 1915 this principle of rule of law was not
universally true among the liberal democratic countries of
Europe. In England the idea of legal equality had been "pushed
to its utmost limit" by 1915, but in France the officials
were "to some extent exempted from the ordinary law of
the land, protected from the jurisdiction of the ordinary
tribunals, and subject in certain respects only to official
law administered by official bodies" (Dicey, 1982, p.
115). By now, however, equality before the law is a universally
recognized principle in all liberal democratic countries,
although different countries might, at the margins, have different
interpretations of what that equality entails.
third meaning of rule of law is formal or procedural justice.
What is formal or procedural justice? Before we answer this
question, we need to answer a more preliminary question: what
is formalism? Max Weber categorizes legal systems into four
kinds: formally irrational, substantively irrational, formally
rational, and substantively rational. Rationality refers to
the generality and universality of law. Formality refers to
the characteristic that the criteria of lawmaking and lawfinding
are intrinsic to the legal system itself; that is, all rules,
procedures and decisions can be deduced from the legal system
itself. In contrast, a legal system that emphasizes substantive
qualities of lawmaking and lawfinding uses factors outside
law, such as ethical, emotional, religious or political factors,
to evaluate cases. To Weber, only a formally rational legal
system can achieve "legal domination" (rule of law)
through consistent application of general rules, because only
a formally rational legal system can maintain a "consistent
system of abstract rules" that is necessary for rule
formally rational legal system, according to the western legal
tradition, also results in justice that we desire. This kind
of justice is called formal or procedural justice, which "connotes
the method of achieving justice by consistently applying rules
and procedures that shape the institutional order of a legal
system" (Shen, 2000, p. 31). More specifically, formal
or procedural justice consists of several principles. First,
the legal system must have a complete set of decisional and
procedural rules that are fair. Second, the fair rules of
decision and procedure must also be pre-fixed and pre-announced.
Third, these decisional and procedural rules must be transparently
applied. Fourth, these decisional and procedural rules must
be consistently applied. When these four conditions are satisfied,
western judges and lawyers will say that they have achieved
a certain kind of justice, which is called formal or procedural
justice. Note that this notion of justice is more concerned
with process and procedure than with the end result. As Selznick
puts it, "legality has to do mainly with how policies
and rules are made and applied rather than with their contents"
(Selznick, 1969, as cited in Shen, 2000, p. 30). In other
words, as long as the process is fair, transparent and consistent,
justice is obtained and legality is achieved.
example will help illustrate the concept of procedural or
formal justice in contrast to substantive justice. If, in
truth, a person has killed another person, substantive justice
requires that the killer be punished according to law. However,
if the killer is illegally tortured by the police to confess
to his crime and, as a result of the confession, the police
find conclusive evidence (i.e., evidence proving guilt beyond
reasonable doubt), such as the weapon, the body of the victim,
etc., for the court to convict the killer (which results in
substantive justice), there is no procedural justice because
the process of finding guilt has violated the basic rights
of the killer who, before the conviction, is a citizen entitled
to the full protection of the Bill of Rights.
this case, based on the well-established law of criminal procedure,
an American judge will not allow the record of confession
(obtained through torture) and anything found as a direct
result of the confession (such as the weapon and the body)
to go into the court as evidence. As such, the jury will never
see these items as evidence, and if the prosecutors have no
other good evidence, the killer is likely to be acquitted,
even though substantive justice requires that the killer be
punished (because, for example, the weapon and the body might
prove the guilt beyond reasonable doubt due to the fact that
the killer knows where the weapon and the body are, and the
weapon contains the killerí»s fingerprints.) In this way,
in the United States, procedural justice triumphs over substantive
justice in this particular case. In the end, the American
judge will claim that justice is done simply because the pre-determined
procedural rule (e.g., illegally obtained evidence is not
admitted in court) is consistently and transparently applied.
prominent Chinese diplomat in the United States once complained
to some American friends that the United States should not
blame China for human rights violations. The United States
itself, the diplomat observed, is not a just society. The
diplomat then went on to use the case of O. J. Simpson as
an example of the lack of justice in American society. With
all the evidence, said the diplomat, it was obvious that Mr.
Simpson was guilty, and an overwhelming majority of American
people also thought he was guilty, but the court set him free
in the criminal trial. "Is this justice?" The diplomat
asked in disbelief. Obviously, the diplomat did not understand
the concept of procedural justice. In the case of O. J. Simpson,
the judge could confidently conclude that justice was achieved
because the trial was conducted according to pre-fixed and
pre-announced procedures in a fair, transparent and consistent
way. If the government could not prove Mr. Simpson's guilt
beyond reasonable doubt, Mr. Simpson should be set free. This
procedural rule ("prove guilt beyond reasonable doubt
in an ordinary court") was a well-established legal rule
known long before the trial started, and the rule was fairly,
transparently and consistently applied to Mr. Simpson's trial.
might ask: does it make sense to emphasize procedural justice?
The general answer is yes. In a system that sacrifices procedural
justice for the sake of substantive justice, the danger of
arbitrary government power and the threat to individual liberty
will be too great. Eventually, that system will lead to substantive
injustice as well. In contrast, in a system that emphasizes
procedural justice, arbitrary government power will be checked,
liberty will be protected, and substantive justice will be
preserved in the long term (if we believe that truth is best
obtained through contest and debate between equals).
specifically, formal or procedural justice has at least three
values. First, without fair and just procedure, there is no
guarantee that the end result will be just (that is, substantive
justice cannot be guaranteed). As such, procedural justice
is seen as a necessary condition for substantive justice.
This is why the western legal tradition places a much higher
value on formal or procedural justice than its East Asian
counterpart, which puts more emphasis on substantive justice.
In fact, some western legal scholars regard procedural justice
as the only workable method for reaching substantive justice,
and to these scholars procedural justice should be the only
concern of the players within the formally rational legal
formal or procedural justice is a condition for constraining
government arbitrariness and protecting individual rights.
When the government is required to follow pre-fixed, transparent
and fair procedures before it can deprive a person's life,
liberty or property, the danger of government arbitrariness
is substantially reduced and the prospect for wrongful deprivations
of individual rights is also significantly diminished.
as Max Weber points out, procedural justice results in consistency,
predictability and calculability that are desirable aspects
of economic and social life. This second value of procedural
justice is independent of any value we place on substantive
justice and strengthens the argument for the western tradition
of emphasizing procedural justice.
comment on formalism is due here. Marxist writers often criticize
the capitalist style rule of law as a sham. In these writers'
vocabulary, "formal" is often synonymous with "superficial"
and "unreal," and the distinction between formal
and substantive justice is turned into a distinction between
apparent and real justice. This characterization of rule of
law is a gross mis-characterization. In western law, being
formal has nothing to do with being superficial or unreal.
"At the heart of the word 'formalism' . . . lies the
concept of decisionmaking according to rule" (Schauer,
1988, p. 510). Furthermore, being formal is probably the only
way through which a juridical order can achieve certain level
of rationality. Professor Giovanni Sartori puts this point
in more stark terms. "When we speak of 'juridical form'
we are singling out the very requisite of a legal order. The
form of law and the formal nature of law constitute . . .
the characteristics by virtue of which a law is a law. . .
. Formal is the method, not the result."
have discussed three core meanings of the western conception
of rule of law. Several caveats are in order. First, we have
so far ignored one fundamental question. Those laws that constitute
constraints on government arbitrariness and establish formal
justice cannot be just any laws. They also have to be "civil"
(a la Montesquieu) or just laws in some substantive sense.
We have so far left the question, "which laws are civil
or just laws?" unanswered. In other words, we have been
focusing exclusively on the form of law, not the content of
law. This focus is not accidental, because it has been the
focus of western jurisprudence in the last one hundred years.
In the western system of liberal democracy, the substantive
justice (justice in content), or "iustum" in Latin,
of law has been guaranteed by a constitutional state. "A
large number of constitutional devices are, in effect, intended
to create the conditions of a lawmaking process in which ius
[the Latin word for law] will remain tied to iustum [what
is just], in which law will remain the right law. For this
reason legislation is entrusted to elected bodies that must
periodically answer to the electorate. And for the same reason
we do not give those who are elected to office carte blanche,
but we consider them power holders curbed by and bound to
a representative role" (Sartori, 1987, pp. 322-323).
As such, western jurisprudence could afford to focus exclusively
on the form of law.
exclusive focus on the form of law is, however, also worrisome.
Because of the existence of the constitutional guarantee on
the substantive justice of law, western jurisprudence has
come to have a purely formal definition of law. "Unfortunately
. . . the formalistic school of jurisprudence completely overlooks
. . . the fact that the formal definition of law presupposes
the constitutional state. Therefore, the high level of systematic
and technical refinement achieved by this approach cannot
save it from the charge of having erected an unsafe juridical
edifice open to easy conquest" (Sartori, 1987, p. 323).
As such, when we study the western conception of rule of law,
we should not forget that western legal scholars have been
living in a constitutional state for so long that they are
used to forgetting the importance of liberal constitutionalism
in guaranteeing the just content of law. We Chinese do not
have such luxury -- we do not have a constitutional state
yet. When we talk about legality in China, we should not focus
only on the form of law; we should also pay particular attention
to the content of law. In fact, as we will see in the next
essay of this series, without a constitutional state, we probably
cannot guarantee anything: neither the content nor the form
of law can be guaranteed to be just. In other words, without
a constitutional state, neither substantive justice nor procedural
justice, either in lawmaking or in the application of law,
can be guaranteed. In the next essay, we will therefore spend
a good amount of time on liberal constitutionalism.
promoting rule of law does not mean that we should, or can,
eliminate rule of person. Literal rule of law has its own
costs (such as rigidity) and in some cases it can conflict
with our sense of justice. In addition, it is probably impossible
to eliminate rule of person completely. After all, laws are
not given; they have to be made by certain people. Laws' applications
are not automatic; they have to be applied by certain people.
Even in the most advanced liberal democratic countries of
our time -- the countries that are regarded as having the
most developed systems of rule of law -- human factors play
important roles in shaping traditions, customs and institutional
cultures that are integral parts of the liberal democratic
machinery. The real question is not whether we should eliminate
or keep rule of person. The real question is about how to
strike a balance between rule of law and rule of person so
we can achieve liberty, equality, and justice. In this regard,
liberal constitutionalism has been the only successful system.
"Liberal constitutionalism is the technique of retaining
the advantages of [rule of law as well as rule of person]
while lessening their respective shortcomings" (Sartori,
1987, p. 308). We will discuss how this is so in the next
have discussed the meaning and the ideals of rule of law in
this essay. In the next essay of this series, we will turn
to the implementation of rule of law, particularly liberal
author is an attorney with the New York law firm of Davis
Polk & Wardwell.)
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