Rule of law

The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.

Perhaps the most famous exposition of the concept of rule of law was laid down by Albert Venn Dicey in his Law of the Constitution in 1895:

When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. ...

... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.

-- Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.

The rule of law is an ancient ideal of first posited by Plato more than 2,500 years ago as a system of rules inherent in the natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it. The concept of impartial rule of law is found in the Chinese political philosophy of Legalism, but the totalitarian nature of the regime that this produced had a profound effect on Chinese political thought which at least rhetorically emphasized personal moral relations over impersonal legal ones. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft.

Rule of law has become an important part of political discourse in the People's Republic of China since the 1990s, and there is the normative principle that all state and party organizations are subject to the Constitution of the People's Republic of China and the laws adopted subject to it.

One major difference between current Chinese and Western concepts of rule of law, is that Western conceptions of rule of law tend to emphasize the ways in which law limits the powers of the goverment. In current Western thought, by preventing arbitrary action, the law prevents the government from doing things that it may want to do, thereby increasing individual autonomy and freedom. By contrast contemporary Chinese conceptions of rule of law tend to emphasize the way that law enhances the power of the government. Although, the law may prevent the government from taking one particular action or another, it creates an efficient administrative system and decreases fear and resentment of the state, thereby enhancing the power of the state. In addition, Chinese conceptions of the rule of law tend to stress, more than Western views, that the government is not a single monolithic body, and the rule of law prevents differences of opinion within the government from spinning out of control.

In a Chinese context, the law is the expression of the people and so the law derives its power from popular will which manifested itself in the communist revolution. It is also seen as a means to make China a rich and powerful notion by preventing social chaos in such as was found in the Cultural Revolution, the cult of personality under Mao Zedong and to increase central control over local officials. Curiously, both supporters and opponents of the government agree that the goal and effect of the emphasis on rule of law in China is to increase rather than reduce the power of the Communist Party of China. Chinese constitutional mechanisms and procedures are such that the law can be easily modified by Party and the existence of regular procedure means that the Party does not need to supervise and control every decision made. In addition, by pointing out that the activities undertaken are contrary to the law, the Party delegitimizes the activities of groups such as Falungong and the Chinese democracy movement.

While there is a consensus both in China and the West that rule of law is a good thing, this has not universially been true. Many communist governments have been negative toward the idea of rule of law, arguing that it interferes with Marxist laws of class struggle. Furthermore, the rule of law at reducing fear in the general public causes rule of law to be opposed in many totalitarian states. The explicity policy in those government, as evidenced in the Night and Fog decrees of Nazi Germany is that the public should be constantly in fear of the government.

There have been a number of criticisms of the concept of rule of law. One is that by focusing on the procedures used to create the law, one loses sight of the content and consequences of those laws. Another, which has been advised by critical theorists is that the concept of rule of law is merely a method by which the ruling classes can justify their rule because they are in charge of determining what law gets past or not. Yet another criticism of rule of law focuses on the emphasis that rule of law places against the prevention of arbitrary action. To take a very real example of these objections, if the PRC commences legal action against a political dissident, that action may not arbitrary or made by personal whim and it may be made according exactly to the law, but it still may be objectionable.

In response, it has been argued that even consistent bad laws can be better than no laws at all. To take the example of the political dissident, one can argue with rule of law, the dissident at least has advanced warning of what could happen to him.

See also: law.




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