Beyond the Hand-Wavy Version of the Rule of Law

The rule of law, as opposed to the rule of men, is believed to be the best way to avoid oppression and rights violations, and rightly so. However, the rule of law, in a superficial definition of the concept, can be just as bad as lawless oppression, because a law can allow or even force people to violate rights and to harm people in such a way that they are no longer free. Governments can and often do use laws for the purpose of domination.

So, the rule of law may be no more than a cover for and an expression of the rule of man over man. Many a dictatorship tries to give the impression of respecting the rule of law by functioning according to laws and by using laws to oppress people. In fact, this isn’t completely foreign to democracies either. Think of anti-terrorism legislation and other oppressive laws that often have wide popular support (anti-same-sex marriage laws). Respect for the law is clearly not enough. The rule of law must be something more than that if it’s not to be an empty phrase.

But what should it be then? To start with, the rule of law can’t exist without a separation of powers. That seems to be a prerequisite. Laws need to be enforced against those who abuse power, and for this reason we need a locus within power strong enough to correct power.  But a separation of powers – no matter how well it functions – it’s not enough either. If there is no higher law that protects human rights, then judicial courts can’t invalidate oppressive laws or laws that violate human rights.

There is only one solution to this problem. The rule of law has to be more than a merely formal or procedural concept. Some requirements on the level of the content of the laws that are supposed to rule are necessary. We have to define the words “law” and “rule of law” in a very specific way and enforce respect for this definition by way of judicial verdicts, otherwise the rule of law will be no more than the rule of men disguised as the rule of law.

What should this definition be? Laws must be compatible with human rights – in the sense of neither allowing nor creating rights violations – and they must be equal for all. Certain more formal or procedural rules will indeed be helpful to increase the probability that we end up with laws like that, but they won’t be enough. It’s probably best, although not absolutely necessary, to have laws voted by the people or by representatives of the people (it’s unlikely that the people will accept laws that violate their rights). And laws must be reviewed by independent judges on the basis of the human rights contained in the constitution. A second legislative chamber confirming or, as the case may be, vetoing acts of legislation, may also be helpful. These are procedural rules instituting the separation of powers.

In a democracy, a law is voted by the representatives of the people and the people can always elect other legislators if they believe that their current legislators vote laws that harm their rights. This is not, of course, a solution for the minority. The majority can still vote or approve laws that oppress the minority. That is why a law must also be compatible with human rights as they are included in the constitution. The law, even if it is accepted or voted by the majority of the people, can’t be everything this majority may desire. In order to enforce the conformity between laws and the rights of the constitution, we need a separation of powers. Minorities should be able to use judicial review, and in addition could be given some kind of privileged representation in a second parliamentary chamber.

A system that enforces rules and prohibitions by way of laws, but lacks one or several of the requirements I’ve listed above, will have a hard time respecting the rule of law. The rule of law is not the rule of any law, but the rule of a certain type of law. Any other definition is devoid of meaning.

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