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RULE OF LAW

Sociologyindex, Sociology Books 2011

Rule of law is the doctrine that arbitrary exercise of power is controlled by subordinating (governmental, military, economic, etc.) power to well-defined and impartial principles of law.

One of the cornerstones of democratic society, rule of law means that everyone is subject to the law. It is not just the rule that everyone is covered by the Criminal Code and must be charged and convicted if appropriate.

Rule of law also means that no one in the society, the Prime Minister, cabinet, senior civil servants, judges or police has power except as it is derived from law.

In rule of law, authority can only come from law, namely the Constitution, a statute, legal regulations, Common Law, municipal by-law. There is a rule of law rather than rule by individuals.

The Rule of Law and Its Limits
Andrei Marmor, USC Gould School of Law
USC Law and Public Policy Research Paper No. 03-16
Abstract: The challenge for any theory about the rule of law is threefold: to explain what the rule of law is, why is it good, and to what extent. This article proposes a comprehensive theory of the rule of law, articulating the conditions that the law has to meet in order to be able to fulfill its pivotal functions in guiding human conduct. The article advances two main theses about these conditions of the rule of law: first, that although the virtues of the rule of law are essentially functional, they are also moral political values, enhancing a range of goods that we value in addition to their functional merit. Secondly, the article comprises detailed arguments purporting to show how legalism can be excessive and that upholding the rule of law virtues is never costless, morally, politically, and otherwise. Within contemporary jurisprudence, this article takes an intermediary position between Lon Fuller's account of the rule of law as exhibiting the "inner morality of law," and Joseph Raz's functional account. The article concludes with an argument showing that the jurisprudential debates about the rule of law have no bearing on the debates between legal positivism and its critics.

Rule of Law "vs" or "&" Rule of Human: A Comparative Leadrship Study of Charles de Gaulle and Chiang Ching-Kuo
Liao, Da-Chi. and Chien, Herlin
Paper presented at the annual meeting of the American Political Science Association.
Abstract: This paper challenges the seemingly uncompromised dichotomy of rule of law and rule of human in the discussion of liberal democracy. By first unraveling the role of rule of law long isolated and accentuated as the quintessential criteria to maintain the practice and the survival of a democratic institution, we pinpoint the observation that both rule of law or rule of human based institutions might suffer varying degree of deterioration and unfeasibility especially under extraordinary circumstances. A new approach to understand establishment and sustainability of democracy is proposed, in which order and stability shall not singularly depend on rule of law but also in accordance with a virtuous rule of human in which the selected personal leadership shall exhibit two crucial qualities: firstly the ability to generate rule of law based democratic institution in time of transitional period, and secondly the willingness to be submissive to the rule of law institution he or she founded to guarantee the sustainability of the system. Two cases of personal leadership, De Gaulle in France and Chiang Ching-kuo in Republic of China, are under careful scrutiny to portrait how unity of rule of law and rule of human can be ready of benefit for states in transition in terms of further consolidating democracy or transforming from an authoritarian to a democratic regime.

Veto Players and the Rule of Law in Emerging Democracies
Josephine T. Andrews, Gabriella R. Montinola, University of California, Davis
Comparative Political Studies, Vol. 37, No. 1, 55-87 (2004) DOI: 10.1177/0010414003260125
The authors investigate the relationship between constitutional design and the rule of law in emerging democracies. The authors provide a formal logic to the Madisonian assertion that increasing the number of veto players strengthens the rule of law. The model shows that as the number of veto players in government increases, their ability to collude on accepting bribes decreases; therefore, their incentive to vote on legislation strengthening the rule of law increases. The authors classify governments according to the number of veto players, following the logic proposed by Tsebelis. The authors test hypotheses derived from their model on 35 emerging democracies using veto-player data that they gathered for the analyses. The authors find that systems with multiple veto players have higher levels of the rule of law. Furthermore, independent of the number of veto players, presidential systems have lower levels of the rule of law than do parliamentary systems.

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