BANGLADESH UNIVERSITY OF BUSINESS & TECHNOLOGY

Assignment On

“Rule of law”

Course Title: Administrative Law

Course Code: Law -711

Submitted To:-

Toriqul Islam

Asst. Professor

Law & Justice Dept.

Bangladesh University of Business & Technology

Submitted By:-

Mohammad Hasan Masud

ID No- 11123305007

LL.M. (2 years)

14th Intake

Dept: Law and Justice (BUBT)

Contents
 01.00 History
o 01.01 Antiquity
o 01.02 Middle Ages
o 01.03 Modern times
 02.00 Categorization of interpretations
 03.00 Status in various jurisdictions
o 03.01 United States
o 03.02 Asia
 4 Organizations and scholarly works
o 04.01 International Commission of Jurists
o 04.02 United Nations
o 04.03 The International Development Law Organization
o 04.04 International Bar Association
o 04.05 World Justice Project
o 04.06 Albert Dicey
o 04.07 Joseph Raz
 05.00 In relation to economics
 06.00 See also
o 06.01 By jurisdiction
 07.00 Notes and references
 08.00 Bibliography
 09.00 External links
Rule of law
The rule of law (also known as nomocracy) generally refers to the influence and authority of law within
society, especially as a constraint upon behavior, including behavior of government officials. This phrase
is also sometimes used in other senses.

In its general sense, the phrase can be traced back to the 16th century, and it was popularized in the
19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as
Aristotle, who wrote "Law should govern".Rule of law implies that every citizen is subject to the law. It
stands in contrast to the idea that the ruler is above the law, for example by divine right.

Despite wide use by politicians, judges and academics, the rule of law has been described as "an
exceedingly elusive notion" giving rise to a "rampant divergence of understandings ... everyone is for it
but have contrasting convictions about what it is."

At least two principal conceptions of the rule of law can be identified: a formalist or "thin" definition, and
a substantive or "thick" definition. Formalist definitions of the rule of law do not make a judgment about
the "justness" of law itself, but define specific procedural attributes that a legal framework must have in
order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this
and include certain substantive rights that are said to be based on, or derived from, the rule of law.
01.00 History
Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V.
Dicey,[8][9] development of the legal concept can be traced through history to many ancient civilizations,
including ancient Greece, China, Mesopotamia, India and Rome.

01.01 Antiquity

In the Old Testament, there was some language imposing restrictions on the Jewish king, regarding such
things as how many wives he could have, and how many horses he could own for his personal use.
According to Professor Bernard M. Levinson, "This legislation was so utopian in its own time that it
seems never to have been implemented...."

In Western philosophy, the ancient Greeks initially regarded the best form of government as rule by the
best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was
above the law. Plato nevertheless hoped that the best men would be good at respecting established
laws, explaining that "Where the law is subject to some other authority and has none of its own, the
collapse of the state, in my view, is not far off; but if law is the master of the government and the
government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods
shower on a state." More than Plato attempted to do, Aristotle flatly opposed letting the highest officials
wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law:

It is more proper that law should govern than any one of the citizens: upon the same principle, if it is
advantageous to place the supreme power in some particular persons, they should be appointed to be
only guardians, and the servants of the laws.

According to the Roman statesman Cicero, "We are all servants of the laws in order that we may be
free." During the Roman Republic, controversial magistrates might be put on trial when their terms of
office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but
those with grievances could sue the treasury.

In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of
governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the
aristocrats and emperor above the law. In contrast, the Huang-Lao school of Daoism rejected legal
positivism in favor of a natural law that even the ruler would be subject to.
01.02 Middle Ages

In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official could claim
to be above the law, not even the caliph. However, this was not a reference to secular law, but to Islamic
religious law in the form of Sharia law.

In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and future
sovereigns and magistrates back under the rule of law, preserving ancient liberties by the Magna Carta
in return for exacting taxes.[18][19] This foundation for constitution was carried into the Constitution of the
United States.

01.03 Modern times

The first known use of this English phrase occurred around 1500 A.D. Another early example of the
phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons:

Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom
have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they
have accounted more dear and precious than this, to be guided and governed by the certain rule of the
law which giveth both to the head and members that which of right belongeth to them, and not by any
uncertain or arbitrary form of government. In 1607, English Chief Justice Sir Edward Coke said in the Case
of Prohibitions (according to his own report) "that the law was the golden met-wand and measure to try
the causes of the subjects; and which protected His Majesty in safety and peace: with which the King
was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he
said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege (That
the King ought not to be under any man but under God and the law.)."

Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford in
Lex, Rex (1644). The title is Latin for "the law is king" and reverses the traditional rex lex ("the king is the
law"). John Locke also discussed this issue in his Second Treatise of Government (1690). The principle was
also discussed by Montesquieu in The Spirit of the Laws (1748).[22] The phrase "rule of law" appears in
Samuel Johnson's Dictionary (1755).

In 1776, the notion that no one is above the law was popular during the founding of the United States.
For example, Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. For
as in absolute governments the King is law, so in free countries the law ought to be king; and there
ought to be no other." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by
seeking to establish "a government of laws and not of men."
02.00 Categorization of interpretations
Different people have different interpretations about exactly what "rule of law" means. According to
political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become meaningless thanks to
ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and
important meanings. Among modern legal theorists, most views on this subject fall into three general
categories: the formal (or "thin") approach, the substantive (or "thick") approach, and the functional
approach.

The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists hold
that the law must be prospective, well-known, and have characteristics of generality, equality, and
certainty. Other than that, the formal view contains no requirements as to the content of the law. This
formal approach allows laws that protect democracy and individual rights, but recognizes the existence
of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual
rights. The substantive interpretation holds that the rule of law intrinsically protects some or all
individual rights.

The functional interpretation of the term "rule of law", consistent with the traditional English meaning,
contrasts the "rule of law" with the "rule of man." According to the functional view, a society in which
government officers have a great deal of discretion has a low degree of "rule of law", whereas a society
in which government officers have little discretion has a high degree of "rule of law". Upholding the rule
of law can sometimes require the punishment of those who commit offenses that are justifiable under
natural law but not statutory law. The rule of law is thus somewhat at odds with flexibility, even when
flexibility may be preferable.

The ancient concept of rule of law can be distinguished from rule by law, according to political science
professor Li Shuguang: "The difference....is that, under the rule of law, the law is preeminent and can
serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government,
that suppresses in a legalistic fashion."

03.00 Status in various jurisdictions

The rule of law has been considered as one of the key dimensions that determine the quality and good
governance of a country. Research, like the Worldwide Governance Indicators, defines the rule of law as:
"the extents to which agents have confidence and abide by the rules of society, and in particular the
quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence."
Based on this definition the Worldwide Governance Indicators project has developed aggregate
measurements for the rule of law in more than 200 countries, as seen in the map below. A government
based on the rule of law can be called a "nomocracy", from the Greek nomos (law) and kratos (power or
rule).
03.01 United States

2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents
have confidence in and abide by the rules of society. Colors range from dark green (90th-100th
percentile) to light green (75th-90th percentile), yellow (50th-75th percentile), orange (25th-50th
percentile), pink (10th-25th percentile) and red (0th-10th percentile). Percentile rank indicates the
percentage of countries worldwide that rate below the selected country.

All government officers of the United States, including the President, the Justices of the Supreme Court,
and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm
that the rule of law is superior to the rule of any human leader. ] At the same time, the federal
government has considerable discretion: the legislative branch is free to decide what statutes it will
write, as long as it stays within its enumerated powers and respects the constitutionally protected rights
of individuals. Likewise, the judicial branch has a degree of judicial discretion and the executive branch
also has various discretionary powers including prosecutorial discretion.

Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the
"rule of law," and if so, which one. For example, Law Professor John Harrison asserts that the word "law"
in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal
or substantive criteria," and therefore judges do not have discretion to decide that laws fail to satisfy
such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero,
Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not
really a law at all.

Some modern scholars contend that the rule of law has been corroded during the past century by the
instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound.
For example, Professor Brian Tamanaha asserts: "The rule of law is a centuries-old ideal, but the notion
that law is a means to an end became entrenched only in the course of the nineteenth and twentieth
century’s."

James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be
unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the
Judges in refusing to give them effect." George Mason agreed that judges "could declare an
unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which
did not come plainly under this description, they would be under the necessity as judges to give it a free
course." Chief Justice John Marshall (joined by Justice Joseph Story) took a similar position in 1827:
"When its existence as law is denied, that existence cannot be proved by showing what the qualities of a
law are."
03.02 Asia

East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good
governance as rule by leaders who are benevolent and virtuous, and Legalism, which advocated strict
adherence to law. The influence of one school of thought over the other has varied throughout the
centuries. One study indicates that throughout East Asia, only South Korea, Japan, Taiwan and Hong
Kong have societies that are robustly committed to a law-bound state. According to Awzar Thi, a
member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia
is weak or nonexistent:

Apart from a number of states and territories, across the continent there is a huge gulf between the rule
of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges
are proxies for the ruling political party ... That a judge may harbor political prejudice or apply the law
unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will
the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will
I be poisoned in prison? Will my case be completed within a decade?

In countries such as China and Vietnam, the transition to a market economy has been a major factor in a
move toward the rule of law, because a rule of law is important to foreign investors and to economic
development. It remains unclear whether the rule of law in countries like China and Vietnam will be
limited to commercial matters or will spill into other areas as well, and if so whether that spillover will
enhance prospects for related values such as democracy and human rights. The rule of law in China has
been widely discussed and debated by both legal scholars and politicians in China.

In India, the longest constitutional text in the history of the world has governed that country since 1950.
Although the Constitution of India may have been intended to provide details that would limit the
opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the
judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, "The rule of
law or rather the Constitution is in danger of being supplanted by the rule of judges."

Japan had centuries of tradition prior to World War II, during which there were laws, but they did not
provide a central organizing principle for society, and they did not constrain the powers of government
(Boadi, 2001). As the 21st century began, the percentage of people who were lawyers and judges in
Japan remained very low relative to western Europe and the United States, and legislation in Japan
tended to be terse and general, leaving much discretion in the hands of bureaucrats.
04.00 Organizations and scholarly works
Many organizations and scholars have advocated the rule of law and have taken positions regarding the
interpretation of that concept they prefer.

04.01 International Commission of Jurists

In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries,
meeting in New Delhi and speaking as the International Commission of Jurists, made a declaration as to
the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the
rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it
implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did
not, however, suggest that the rule of law requires legislative power to be subject to judicial review.

04.02 United Nations

The Secretary-General of the United Nations defines the rule of law as:

a principle of governance in which all persons, institutions and entities, public and private, including the
State itself, are accountable to laws that are publicly promulgated, equally enforced and independently
adjudicated, and which are consistent with international human rights norms and standards. It requires,
as well, measures to ensure adherence to the principles of supremacy of law, equality before the law,
accountability to the law, fairness in the application of the law, separation of powers, participation in
decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest
since 2006 and has adopted resolutions at its last three sessions. ] The Security Council has held a number
of thematic debates on the rule of law, and adopted resolutions emphasizing the importance of these
issues in the context of women, peace and security, children in armed conflict, and the protection of
civilians in armed conflict. The Peace building Commission has also regularly addressed rule of law issues
with respect to countries on its agenda. The Vienna Declaration and Programme of Action also require
the rule of law be included in human rights education.
04.03 The International Development Law Organization

The International Development Law Organization (IDLO) enables governments and empowers people to
reform laws and strengthen institutions to promote peace, justice, sustainable development and
economic opportunity. IDLO works along the spectrum from peace and institution-building to economic
recovery in countries emerging from conflict and striving towards democracy. It supports emerging
economies and middle-income countries to strengthen their legal capacity and rule of law framework for
sustainable development and economic opportunity. The International Development Law Organization is
the only inter-governmental organization with an exclusive mandate to promote the rule of law; IDLO
works to make institutions of law and justice work for people.

04.04 International Bar Association

The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or
"thick" definition of the rule of law [

An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial
without undue delay; a rational and proportionate approach to punishment; a strong and independent
legal profession; strict protection of confidential communications between lawyer and client; equality of
all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests;
secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation
or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a
civilized society. It establishes a transparent process accessible and equal to all. It ensures adherence to
principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental
principles. It also calls upon its members to speak out in support of the Rule of Law within their
respective communities.

04.05 World Justice Project

As used by the World Justice Project, a non-profit organization committed to advancing the rule of law
around the world, the rule of law refers to a rules-based system in which the following four universal
principles are upheld:

1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of
persons and property;
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and
efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or
representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect
the makeup of the communities they serve.
The World Justice Project has developed an Index to measure the extent to which countries adhere to the
rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and
covers a variety of dimensions of the rule of law —such as whether government officials are accountable
under the law, and whether legal institutions protect fundamental rights and allow ordinary people
access to justice.

04.05 Albert Dicey

British jurist A. V. Dicey popularized the phrase "rule of law" in 1885. Dicey emphasized three aspects of
the rule of law  :

1. No one can be punished or made to suffer except for a breach of law proved in an ordinary court.
2. No one is above the law and everyone is equal before the law regardless of social, economic, or
political status.
3. The rule of law includes the results of judicial decisions determining the rights of private persons.

04.06 Joseph Raz

In 1977, the influential political theorist Joseph Raz identified several principles that may be associated
with the rule of law in some (but not all) societies. Raz's principles encompass the requirements of
guiding the individual's behaviour and minimizing the danger that results from the exercise of
discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the
constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz's principles are as
follows:

 That laws should be prospective rather than retroactive.

 Laws should be stable and not changed too frequently, as lack of awareness of the law prevents
one from being guided by it.
 There should be clear rules and procedures for making laws.
 The independence of the judiciary has to be guaranteed.
 The principles of natural justice should be observed, particularly those concerning the right to a
fair hearing.
 The courts should have the power of judicial review over the way in which the other principles
are implemented.
 The courts should be accessible; no man may be denied justice.
 The discretion of law enforcement and crime prevention agencies should not be allowed to
pervert the law.

According to Raz, the validity of these principles depends upon the particular circumstances of different
societies, whereas the rule of law generally "is not to be confused with democracy, justice, equality
(before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man".
05.00 In relation to economics
One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on
economic development. The rule-of-law movement cannot be fully successful in transitional and
developing countries without an answer to the question: does the rule of law matter for economic
development or not? Constitutional economics is the study of the compatibility of economic and financial
decisions within existing constitutional law frameworks, and such a framework includes government
spending on the judiciary, which, in many transitional and developing countries, is completely controlled
by the executive. It is useful to distinguish between the two methods of corruption of the judiciary:
corruption by the executive branch, in contrast to corruption by private actors.

The standards of constitutional economics can be used during annual budget process, and if that budget
planning is transparent then the rule of law may benefit. The availability of an effective court system, to
be used by the civil society in situations of unfair government spending and executive impoundment of
previously authorized appropriations, is a key element for the success of the rule-of-law endeavor.

The Rule of Law is especially important as an influence on the economic development in developing and
transitional countries. To date, the term “rule of law” has been used primarily in the English-speaking
countries, and it is not yet fully clarified even with regard to such well-established democracies as, for
instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of
common law and civil law countries as well as between legal communities of developed and developing
countries are critically important for research of links between the rule of law and real economy.

The modern economist F. A. Hayek analyzed how the Rule of Law might be beneficial to the free market.
Hayek proposed that under the Rule of Law individuals would be able to make wise investments and
future plans with some confidence in a successful return on investment when he stated: "under the Rule of
Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known
rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of
government will not be used deliberately to frustrate his efforts." Hayek defined the Rule of Law as the
opposite of arbitrary government: "The distinction we have drawn before between the creation of a
permanent framework of laws within which the productive activity is guided by individual decisions and
the direction of economic activity by a central authority is thus really a particular case of the more
general distinction between the Rule of Law and arbitrary government. Under the first the government
confines itself to fixing rules determining the conditions under which the available resources may be
used, leaving to the individuals the decision for what ends they are to be used. Under the second the
government directs the use of the means of production to particular ends. The first type of rules can be
made in advance, in the shape of formal rules which do not aim at the wants and needs of particular
people. They are intended to be merely instrumental in the pursuit of people's various individual ends.
And they are, or ought to be, intended for such long periods that it is impossible to know whether they
will assist particular people more than others. They could almost be described as a kind of instrument of
production, helping people to predict the behavior of those with whom they must collaborate, rather than
as efforts toward the satisfaction of particular needs." Differentiation from other major legal systems