What Are Human Rights? (22): Part of the Rule of Law

The claim here is not the trivial one that human rights depend on the rule of law because they can’t be enforced without it. The more interesting question is the opposite one: whether there can be a rule of law without human rights. Or, in other words, is the rule of law a necessary but not a sufficient condition for human rights?

At first sight, the answer to both questions would be “yes”. Indeed, the law can be anything, and as long as it “rules” in some way – i.e. as long as the laws are consistently enforced and not superseded by frivolous and arbitrary commands of men – one could claim that there is some sort of “rule of law”, even if the laws in question violate human rights. Civilizations had the rule of law long before the concept of human rights even existed (the Roman Empire may be an example).

Joseph Raz has famously claimed that

the law may, for example, institute slavery without violating the rule of law. (source)

Nazi Germany was also very much a law based society. (See here for example). Indeed, it can be plausibly claimed that strong and authoritarian states are better able to impose rules. That would lead to an incompatibility between human rights and the rule of law.

The fact that many if not most dictatorships make a mockery of the rule of law and of the law itself, and govern in a totally arbitrary way based on the whims of a few men rather than laws and rules, doesn’t exclude the possibility that some dictatorships respect the rule of law, and that the rule of law can indeed be the rule of very bad law, viewed from the perspective of human rights. A prima facie conclusion has to be that dictatorships can respect the rule of law and that regimes based on human rights can inhibit the rule of law: privacy protection, rules on the determination of criminal guilt etc. can make the rule of law more difficult. Authoritarian regimes can easily lift the veil of privacy in order to check for violations of the law, and are not at risk of freeing guilty people because of the presumption of innocence and the burden of proof.

The rule of law, viewed in this manner, is a purely formal concept devoid of substance: as long as the laws “rule”, we have a rule of law, no matter what the substance of those laws may be. Laws are then viewed solely as rules that guide conduct, but the direction in which they guide is immaterial. The rule of law, according to this view, should not be confused with the rule of the right law. The rule of law as a concept deals not with the content of the laws but with the way in which they are enforced and formulated.

That last word is important: the rule of law should logically be more than a system of governance in which rules are imposed by force. Imposing rules by way of force can in itself not be viewed as a system of the rule of law. It would be far-fetched to claim, for example, that a government using force to impose completely arbitrary rules that change every day respects the rule of law. The rules in question have to be formulated in a certain way; there have to be rules of legislation in order to have a rule of law.

These rules usually include the following:

  • Laws should not be imposed retroactively: the rule of law implies respect for the laws, and citizens can’t be expected to respect laws if they are imposed retroactively.
  • Laws should be made public, for the same reason.
  • Laws should be relatively permanent, clear and intelligible, again for the same reason.
  • Laws should strive to be general rules applicable to everyone, rather than commands directed at certain persons or groups; the reason for this rule of legislation is the differentiation between rule of law and rule of man.
  • Laws should not contradict each other, again for reasons of respect.

These rules of legislation differentiate laws and the rule of law from an arbitrary set of rules imposed by force. The rules of legislation are formal and don’t, at first, impose content on the specific laws generated by these rules. However, once you take a closer look at these rules of legislation, it becomes increasingly difficult to maintain that the rule of law is a contentless concept that allows the law to be virtually anything, even abject oppression. Some of the values inherent in the rules of legislation are also inherent in human rights: publicity and equality for example.

The rules of legislation also create another link to human rights: they assume free will. If rules can’t be secret or can’t be applied retroactively it’s because we want to give people the choice to change their behavior so that it complies with the law. Secret and retroactive laws are impossible according to the rules of legislation, and hence also according to the rule of law, because they are an affront to freedom. (See the work of Lon L. Fuller for a more detailed version of this argument).

Hence, freedom is an important part of the rule of law, just like publicity and equality. So it would be strange to claim that a regime respects the rule of law if its laws violate people’s freedom, equality and public activity (such as speech). That would have to be a diminished kind of rule of law. Maybe the regime in question does respect the rules of legislation and does more than impose any arbitrary set of rules by way of force. But if it does so, it sets in motion a dynamic that will ultimately lead to freedom, equality and publicity because it uses these values in its legislation (although not in its laws). Violations of human rights are initially consistent with the rule of law – correctly understood as more than any arbitrary set of rules imposed by force – but not over time, since the dynamic of the rules of legislation uses values that are likely to infuse the laws themselves rather than merely the rules of legislation. And these values will direct the laws towards human rights since they are the same as the values inherent in human rights.

For example, if you have a law that imposes slavery, this law may initially have been created with respect for the rules of legislation (for instance, it may be a public law that doesn’t criminalize behavior that took place before the publication of the law). But since these rules imply the equality and freedom of all citizens, the law in question will ultimately come to be seen as inconsistent with the system of legislation. Over time, the rule of law will become the rule of the right law.

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