Many speak of it, but few know exactly what it is. By definition, it is a formal restraint on government. It judges government and sets the lines within which said governments must keep. The laws it entails do not change day to day and cannot be altered by ordinary acts of government.
The rule of law is the general concept that government, as well as the governed, are subject to the law and that all are to be equally protected by the law. The difference between the rule of law as opposed to that of individual rulers and tyrants is a central theme in the writings of political philosophers from the beginning.
The rule of law means a formal, regular process of law enforcement and adjudication. What is meant by the saying, “a government of laws, not of men” is the rule of men bound by law, not subject to the arbitrary will of others. The rule of law means general rules of law that bind all people and are safeguarded and enforced by a system of courts and law enforcement, not by mere discretionary authority.
The rule of law implies that there are certain unwritten rules or generally understood standards to which specific laws and lawmaking must conform. There are some things that no government legitimately based on the rule of law can do. Many of these particulars were developed over the course of the history of British constitutionalism, but they may be said to stem from a certain logic of the law. In order to secure equal rights to all citizens, the government must apply the law fairly and equally through this legal process. Notice, hearings, trial by jury, legal counsel, the right against self-incrimination, are all part of a fair and equitable “due process of law” that provides regular procedural protections and safeguards against abuse by government authority.
The rule of law means that these rules are binding on rulers and the ruled alike. In the works of Plato and as developed in Aristotle’s writings we see that it implies obedience to positive law as well as rudimentary checks on rulers and magistrates.
This is why, although we have three coequal branches of government, the legislature is the first among equals. But as those who make law are themselves subject to some law above them, this gives rise to the idea that there are different types of laws, some of which are more significant and important, and thus more authoritative than others. The rule of law, especially in terms of key procedural and constitutional concepts, stands above government.
Written by: Gianluca Vella