The Rule of Law in the Studies of Tamanaha and Belton - Essay Example

Rule of Law In today's political conditions is 'the rule of law' of greater importance than ever, or is it simply rhetoric that diverts our attentionfrom the real issues The rule of law is taken very frequently as a widely spread piece of rhetoric, but it can't be disregarded in no way, as it is indeed an extremely significant prerequisite for the establishment and permanence of a free, democratic society. A lot of politicians speak over and over again about the rule of law, and in this way the rule of law constitutes a relevant accessory of their empty political discourse. The rule-of-law topic is a very serious business to think about with the right frame of mind. We should be deeply concerned about the actualization of a true rule of law in our world as a global society where diversity and tolerance are key points in our everyday agendas. There some theorists and researchers who have written about the rule of law lately. In this essay we deal mainly with two of such writers: Brian Z. Tamanaha and Rachel Kleinfeld Belton. We have chosen their papers as our source material because their points of view seem to be rigorous and comprehensive in the different facets of the rule of law that they talked about. Tamanaha does his best to be epistemic when dealing with the rule of law as a general principle that it is often misunderstood while Belton does her best to find a proper definition of what we mean by rule of law as she is completely aware of the generalised state of confusion about this term. Both writers shed light on this topic, and their insights are very useful in order to get an adequate understanding of the rule of law as a fundamental principle that should be taken into account with a sense of commitment and responsibility not only by government officials, politicians, lawmakers or law people, but by everyone in any society at any time. Nobody is exempt from the rule of law, so everybody has to worry about it. Dr. Mark Cooray (1995) studies the rule of law in some detail along the following line of thought: "The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352: 'The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King'. (Cooray, 1995). This last assertion is quite bold and brings with it the idea of sovereignty. It can be misinterpreted like the concept of the free will of man. When we analyse carefully the Bible, as it is the Westerne standard as its sacred book, we will clearly see that there is not free will, but free agency. This means that man is not free to act as he pleases, but man is free to act according to the design of his own limited nature. So man is still responsible and accountable for his own deeds before God and man. The same happens with any sovereign who is supposed to act under the duty and the call of the law. Why Plainly because the law is the mechanism that makes him sovereign, that makes him king. Dr. Cooray keeps on analysing the rule of law with the following statements: "The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance. The essential characteristic of the rule of law are: i. The supremacy of law, which means that all persons (individuals and government) are subject to law. ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures. iii. Restrictions on the exercise of discretionary power. iv. The doctrine of judicial precedent. v. The common law methodology. vi. Legislation should be prospective and not retrospective. vii. An independent judiciary. viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive. ix. An underlying moral basis for all law. (Cooray, 1995). On the other hand, Tom Glass (2005) in his article "Toward Liberty and Justice for All" stated the following about the rule of law: "The rule of law consists of several important concepts: -Government decisions are made according to written law and rules -Government sanctions cannot be made up after the fact (ex post facto) -Rules are applied as much as possible consistently to all -Courts provide citizens consistent, written process (due process) before life, liberty, or property is taken -Courts provide reasons based upon the law for their decisions (Glass, 2005). Glass sums up his views as follows: "Rule of law and due process are the bedrock upon which all American liberty and justice are based. Untold numbers of American and Englishmen in history have paid a dear price in effort, fortune, and even life itself, to bequeath to us the rule of law. Unfortunately, through neglect and design, if not protected, the rule of law and all those values which it protects and we hold dear can be undermined." (Glass, 2005). The Wikipedia (2006) gives a detailed practical account on the rule of law. At the beginning of its article devoted to this topic it states with simple words the intention and purpose of the rule of law. Let's see: "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. Thus, those who make and enforce the law are themselves bound to adhere to it." (Wikipedia, 2006). Once again the principle that the rule of law is a prerequisite for democracy and freedom is validated on the Wikipedia in a very logical way: "The concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a "rule of law", a situation which many argue is applicable to several modern dictatorships. However, the "rule of law" is considered a pre-requisite for democracy, and as such, has served as a common basis for human rights discourse between countries such as the People's Republic of China and the West." (Wikipedia, 2006). China is taken as an example to contrast the Western world due to the fact of being subjected under completely different rules of government. In this sense it is useful to study the opinion of the East regarding the rule of law as it can shed light on the state of affairs in relation to the rule of law in the West. The Wikipedia puts it this way contrasting the concept of "rule of law" with the concept of "rule by law": "In the Anglo-American legal tradition rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the government. In the People's Republic of China the discourse around rule of law centers on the notion that laws ultimately enhance the power of the state and the nation, which is why the Chinese government adopts the principle of rule by law rather than rule of law." (Wikipedia, 2006). The opposition to the rule of law in China and authoritarian states is presented with the following words by the Wikipedia: "While there is a consensus in different parts of the world that rule of law is a good thing, this is not a universally accepted proposition. The People's Republic of China during the Cultural Revolution has been rather negative toward the idea of rule of law, arguing that it interferes with class struggle. Furthermore, rule of law is opposed in many authoritarian and totalitarian states. The explicit policy of those governments, as evidenced in the Night and Fog decrees of Nazi Germany, is that the public should be constantly in fear of the government." (Wikipedia, 2006). But there is also opposition to the rule of law in democratic societies within the ranks of its own members as we can see in the Wikipedia when it deals with serious and valid arguments against the rule of law. Let's see: "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 which laws get passed or not (in other words, they argue that the rule of law is in reality the rule of those people who have the power to make or change laws). Yet another criticism focuses on the emphasis that rule of law places on the prevention of arbitrary action, while giving legitimacy to all actions performed "according to the law", even when most people would oppose those actions." (Wikipedia, 2006). As we can see the theme of the rule of law is very complex and it brings about a lot of conflict of interests between its proponents and its opponents. It's not an easy subject to deal with, but it is necessary to pay attention to its inner workings. Rachel Kleinfeld Belton researched the rule of law for the Carnegie Endowment for International Peace. In her paper "Competing Definitions of the Rule of Law: Implications for Practitioners" published January 2005 as part of the Rule of Law Series and the Democracy and Rule of Law Project, Belton made a fundamental point in concentrating of the different definitions given to the concept of "the rule of law". Belton suggested the following kinds of definitions: "Definitions of the rule of law fall into two categories: (1) those that emphasize the ends that the rule of law is intended to serve within society (such as upholding law and order, or providing predictable and efficient judgements), and (2) those that highlight the institutional attributes believed necessary to actuate the rule of law (such as comprehensive laws, well-functioning courts, and trained law enforcement agencies)." (Belton, 2005, p. 3). Belton went on to be more specific about the classification of definitions stating the following points: "First, as ends-based definitions make clear, the rule of law is not a single, unified good but is composed of five separate, socially desirable goods, or ends: (1) a government bound by law, (2) equality before the law, (3) law and order, (4) predictable and efficient rulings, and (5) human rights. () Second, a number of the widely acknowledged problems with current rule-of-law reform strategies spring directly from pitfalls inherent in a definition based on institutional attributes." (Belton, 2005, p. 3). Belton cleverly and concisely pointed out the benefits of knowing all the possible definitions of the rule of law in order to better apply that knowledge into workable paradigms of appropriate reform. Let's see how she stated it: "Consciously switching to an ends-based definition would provide conceptual clarity to strengthen rule-of-law reform efforts. By considering the rule of law as a series of separate goods that must advance together, practitioners can improve their measurements of the rule of law within and between various countries, better anticipate likely supporters of and opponents to different reform efforts, and avoid various unintended side effects of reform efforts that now sometimes undermine the rule of law in countries attempting reform." (Belton, 2005, p. 3). As a curiosity note, Belton quoted Michael Oakeshott in relation to the rule of law in the epigraph of her paper: "The rule of law bakes no bread, it is unable to distribute loaves or fishes (it has none), and it cannot protect itself against external assault, but it remains the most civilized and least burdensome conception of a state yet to be devised (1). -Michael Oakeshott, 1983." (Belton, 2005, p. 5). The present political situation of conflicts in the world is a serious matter of concern for all of us who aspire to a civilised global society in which tolerance and diversity can be as real as the technological advances that foster the process of globalisation. Belton took a global look at the rule of law in the present conflictive world. As a brief conclusion she pointed out that: "Developed countries and international organizations have spent more than a billion dollars over the last twenty years trying to build the rule of law in countries transitioning to democracy or attempting to escape underdevelopment (3). Like a product sold on late-night television, the rule of law is touted as able to accomplish everything from improving human rights to enabling economic growth to helping to win the war on terror. The rule of law is deemed an essential component of democracy and free markets." (Belton, 2005, p. 5). But Belton is positive about the fact that many people talk about the rule of law without really knowing what they are talking about. There is an overall confusion in relation to that essential concept: "Read any set of articles discussing the rule of law, and the concept emerges looking like the proverbial blind man's elephant -a trunk to one person, a tail to another. In fact, the phrase is commonly used today to imply at least five separate meanings or end goals. () This conceptual confusion may have arisen because practitioners working to build the rule of law abroad have developed an entirely different way of looking at the concept, based not on end goals but on institutions to be reformed". (Belton, 2005, pp. 5-6). Belton made a great deal of an emphasis on the accurate definition of the rule of law in order to better apply the resulting ideas into workable reforms. She is right in this respect. We can't advance at the appropriate pace if we don't know where we are directing our efforts. Belton stated her ideas this way: "If institutional reform led directly to improvements in rule-of-law ends, that would be true enough. Yet, because achieving such ends requires reform across institutions while institutional reforms are generally carried out within single institutions, institutional reform can be undertaken with no significant effect on rule-of-law ends. At the same time, definitions based on institutional reforms of rule-of-law institutions can undermine rule-of-law ends. Therefore, the slant toward definitions based on institutional attributes or which amalgamate ends and institutions has serious repercussions for the success (or lack thereof) of rule-of-law building strategies. Improving our definitions is crucial to advancing our understanding of what it is we are trying to build and our ability to implement reforms. Before we can improve definitions, however, we must first consider each definition in turn." (Belton, 2005, p. 7). In a very explicit way Belton explained that the rule-of-law field of reforms has evolved out of necessity in a dynamic process in which the different agents have been involved. This interaction has progressed incessantly up to the present. Belton stressed the fact that this process didn't emerge out of an academic or scholarly discourse, but rather out of the necessity of reality. Let's see: "The new field of rule-of-law reform did not emerge slowly after years of academic discourse. It grew from action -action needed right away- as states tried to keep regions from falling into poverty and anarchy, organizations jockeyed with one another for primacy in a new and growing field, reformers tried to create new polities out of crumbling states, and the United States and Europe fought for influence over the newly unallied states of Eastern Europe through legal systems, as well as through NATO and the EU. Few, except perhaps practitioners on the ground, noticed that they were working for different goals under the rubric of rule-of-law reform -and that they were too busy acting to comment." (Belton, 2005, p. 28). As we can conclude from Belton's paper, the ideal manner of dealing with rule-of-law issues is to face the rule-of-law reforms as a unitary system. We have to be systemic when dealing with the rule of law, and this is shown all along Belton's words and intentionality in this paper. We have to take into account the five separate ends or goals as well as the institutional approach to rule-of-law reforms in order to come up with the desired outcomes of balance and harmony. Belton stated this idea with the following words: "Rule-of-law reformers are trying to build a system that is better seen not as a set of institutions but as a set of distinct but interrelated end goals. When the system is properly balanced, these ends are mutually supportive. But when the system is in its infancy or when these goods are improperly aligned, they can undermine each other. () By treating the rule of law as a set of institutions, reformers handicap themselves in bringing about the end goals of the rule of law -all of which require reform across institutions, as well as cultural and political changes that lie outside the concrete institutional realm. By treating the rule of law as a single good rather than as a system of goods in tension, reformers can inadvertently work to bring about a malformed rule of law, such as one in which laws that overly empower the executive are applied and enforced more efficiently (92)." (Belton, 2005, p. 28). On the other hand, Brian Z. Tamanaha (2003) dealt with this issue in his essay "The Rule of Law for Everyone" published by the School of Law of St. John's University. His account is very comprehensive and rigorous. Tamanaha dealt with this topic with real passion and enthusiasm. He tried to be epistemic at all times. He analysed in detail the rule-of-law concept from the liberals and non-liberals point of view. Tamanaha started his exposition by making the assertion of the fact that the rule of law is of premium importance for all the conflicting sides without regards of their position in favor or against the ideas behind the rule of law. Tamanaha stated it the following way: "Without doubt, "the rule of law" is the dominant legitimating slogan in the world today. Even governments that reject, or express reservations about, democracy and human rights as Western cultural and political inventions not suitable for their own societies, nonetheless claim that they abide by, or are working toward achieving, the rule of law". (Tamanaha, 2003, p. 3). Tamanaha went on making emphasis of the universal concern about the rule of law pointing out of the importance of the rule of law in setting up the standard that can be used in order to legitimate any democratic society. Tamanaha put it plainly with the next words: "Agreement thus exists on all sides that governments should be adjudged by their adherence to the rule of law. No one says that the rule of law is an elixir for all ails. But many apparently believe that it is a fundamental component of any successful recipe for political and economic stability and progress, as well as a standard by which to evaluate government legitimacy". (Tamanaha, 2003, p. 5). At the same time Tamanaha was very cautious when dealing with the rule-of-law concept. He stated four reasons why all of us should be cautious with regards of the application of the rule of law in any society. Let's see: "Four reasons, however, counsel caution in the rush to embrace the rule of law. First, the rule of law is strikingly like the notion of the "good", in the sense that everyone is for it, but there is no agreement on precisely what it is. () The second reason for caution is that, according to a recent article in Foreign Affairs, more than ten years of effort and hundreds of millions of dollars have been expended on developing the rule of law, focused especially on developing judicial systems, but with scant positive results. () The third reason for caution is that it is not obvious that the rule of law is good for many circumstances in non-Western societies. () The final reason for caution is a striking disjunction between the theoretical discourse on the rule of law and the political discourse on the rule of law." (Tamanaha, 2003, pp. 6-8). As a way of summing up his position regarding the prerequisite of an independent judiciary for establishing the rule of law, Tamanaha took into account all his insight in relation to the liberal and non-liberal societies in the realm of their positions about the rule of law. His conclusion in this respect is the following: "An independent judiciary, which plays a prominent role in the liberal version, and a less prominent (outside of vigilant guarding of constitutional restraints) but still important role in the non-liberal version, is not achieved simply by granting judges life tenure and paying them well. Its foundation lies in a strong legal tradition and, more fundamentally, in a pervasive belief among the populace that the law rules". (Tamanaha, 2003, p. 32). Tamanaha summarises his essay pointing out the fact that we have to understand that any law or set of laws will always have its own limits. This is a wise position. Tamanaha's solution seems to be very eclectic as it takes into consideration the limits of the law as well as the limits of the agents in the process of dealing with the rule of law. Tamanaha concluded his paper as follows: "Pervasive societal attitudes about fidelity to the rule of law -in particular the belief that government officials must operate within the law- is the mysterious ingredient that makes the rule of law work. () In addition to a pervasive belief in fidelity to law, it is also essential to have a pervasive belief (among the populace as well as law makers and government officials) that there are limits to the law itself, that certain things cannot be done in the name of law even when properly enacted in legal terms. What the source and content of those limits might be can only be filled in relation to each situation, but that in no wise lessens its significance. For only this can prevent the use of law as an instrument of tyranny." (Tamanaha, 2003, pp. 32-33). Taking all the previous study into account we can clearly see that for many societies or group of people the rule of law has meant to be the rule of power. That is a real threat to an affirmative definition of the rule of law. If we read the Bible with an open eye, we will realize the fact that the rule of law is always the aim for which Christ is fighting for against the Sadducees and Pharisees. The spirit of the law, not the letter of the law. We face the same situation in our times. We really need the rule of law in order to prevent a possible nuclear or biological war. We really need the rule of law in order to stop terrorism for good out the face of Earth. References Belton, R. K. "Competing Definitions of the Rule of Law: Implications for Practitioners". (January 2005). Carnegie Papers. Rule of Law Series. Democracy and Rule of Law Project. Number 55. Carnegie Endowment for International Peace. Retrieved 18 January, 2006, from http://www.carnegieendowment.org/files/CP55.Belton.FINAL.pdf Cooray, Dr. M. "The Rule of Law". (1995). In The Australian Achievement: From Bondage to Freedom. Retrieved 18 January, 2006, from http://www.ourcivilisation.com/cooray/btof/chap180.htm Glass, T. ""Toward Liberty and Justice for All". (9 January, 2005). Retrieved 18 January, 2006, from http://www.rule-of-law.info/ Tamanaha, B. Z. "The Rule of Law for Everyone" (28 February, 2003). St. John's University. School of Law. In Social Science Research Network (SSRN). Retrieved 18 January, 2006, from http://ssrn.com/abstract=312622 Wikipedia. "Rule of Law". (January 28, 2006). Retrieved 18 January, 2006, from http://en.wikipedia.org/wiki/Rule_of_law Read More