The rule of law

1. The rule of law Summary • An ambiguous, but fundamental notion • Its original meanings • The relationship with other notions • A notion still useful?

2. An ambiguous, but fundamental notion “Rule of Law” is one of the most frequently used expression referring to Constitutional Law, Criminal Law, Administrative Law, Civil Law. Used in UK, USA and all the Commonwealth Countries. But, also, as a leverage in the institution-building processes: in transitions to democratic and liberal regimes Used by international treaties, statutes, judges, law scholars and politicians Often considered as “the cornerstone of liberty” (Hayek, 1944) But… … Tendency to use it as a shorthand description of the positive aspects of any given political system. It could be that “The extraordinary support for the rule of law in theory, however, is possible only because of widely divergent views of what it means in practice” (Chesterman, 2008).

3. Some examples: International Charts and EU • Universal Declaration of Human Rights (1948) “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” • European Convention for the protection of Human Rights (1950) “Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration” • In the EU Several decisions of the EU Court of Justice affirming that the EU in “a community based on the rule of law” (starting from Parti ecologiste “Les Verts” v. European Parliament: case 294/83, 23 April 1986). More briefly “a community of law” or, sometime, “a community of rights”.

4. Some examples:Constitutional documents • Constitution of South Africa (1996) Art. 1: The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a)   Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b)   Non-racialism and non-sexism. (c)   Supremacy of the Constitution and the rule of law. (d)   Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. • Constitutional Reform Act 2005 Article 1 - The rule of law This Act does not adversely affect: (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor's existing constitutional role in relation to that principle.

5. Another example (for political declarations, see also back cover of Bingham) “For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” “The rule of law and transitional justice in conflict and post-conflict societies”, Report of the UN Secretary-General (Kofi Annan), 2004

6. A structural ambiguity • Rule of law, not of men; but laws are made by men (not anymore by God) • Law or Legislation? (Diritto o legge?) • Rule of law and democracy: an alliance or a fight? The example of electoral process. Art. 1 of Italian Constitution • Rule of law and Constitutionalism: similarities and differences

7. A scheme for alternative theoretical formulations of the rule of law(from Tamanaha, 2004, with adaptations)

8. The original meanings of rule of law According to Dicey (1885: first prominent modern formulation and analysis of the rule of law in a liberal democratic system), three meanings: 1) No man is punishable except for a distinct breach of law established before the ordinary courts (similar to habeas corpus) 2) No one is above the law, and all are subject to the same law administered in the same courts (equality principle) 3) The general principles of the Constitution and the rights of the individual are the results of judicial decisions (the spontaneous character of the English Constitution)

9. A definition of rule of law All persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future ad publicly administered in the courts (Bingham, p. 8)

10. The elements of rule of law(from Bingham, The rule of law, 2010, with adaptations) • The law must be accessible and so far as possible intelligible, clear and predictable (also judge-made law) • Questions of legal right and liability should be resolved by application of the law, and not the exercise of discretion • The laws should apply equally to all, save to the extent that objective differences justify (reasonable) differentiation • Public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits and not unreasonably • The law must afford adequate protection of fundamental human rights • Means must be provided for resolving, without prohibitive cost or inordinate delay, civil disputes • Adjudicative procedures provided by the State must be fair (fair trial) • The State must comply with its obligations in national law and in international law

11. The relationship with other (similar) notions • Etat de droit, Rechtsstaat, Stato di diritto: The rule of law does not require the idea of the State. Applications of the rule of law to the State. But there are some differences: - Etat de droit: Legislative Power: Abstract laws, expression of the general will • Reechtsstaat: Executive Power: Self-restraint of the Administrative State. Passage between Authoritarian State and Liberal State • Rule of Law: Judicial Power: concrete guarantee of rights through the Judges • principe de legalitè, principio di legalità In a formal or in substantial meaning: it is close to (and almost as ambiguous as) the rule of law. • réserve de loi, riserva di legge Absolute or Relative. It is an application of the rule of law to the sources of law. The guarantee of the rights is given by the law: a sign of the trust in the legislator

12. Still a useful notion? “Rule of law” as a synthetic expression, comprehensive of some (a lot or a few, depending on the meaning we accept) of the characteristics of contemporary States. In a broad and fully substantial meaning, it risks to include too much, and to coincide with the idea of “Constitutional State” (see further). In a strict meaning (but not only formal), it emphasizes some minimal requirements of the Liberal State: useful, in this case, to define the essence of the Liberal State and to sustain the processes of democratization (in a certain sense, in the same way of the “acquis communautaire”). In any case, it varies in the history and it is not auto-sufficient: it needs to be balanced with the democratic principle (who has different origins, and who, without the rule of law, tends to coincide with the “dictatorship (or tyranny) of the majority”)