[Vnbiz] 'rule of law' and/or 'rule by law'

[Shane Wall]

That is a great question. anh Toan.
 
   For me, the "rule of law" means that all people and institutions are
treated equally according to the law, this includes the people and
organizations entitled with making and/or upholding those laws. In the
(amended) Westminster system we have in Australia, I - as a private citizen
- have the right to "take the Government to court". In this situation, the
government MUST abide by the ruling(s) of the Court. I believe the U.S. is
similar, but anh Hoanh is better to ask about this. This is a 'passive'
means of regulation and carries with it the fact that the government might
pass a 'law', but then that 'law' could be found to be unconstitutional or
'illegal' in some way by the judicial system.
 
   However, "rule by law"  - to me - means that the governing body -
whatever that body is - issues the laws and there is no challenge to those
"laws" from any person or institution, including the judiciary or any other
legally constituted body.
 
   This highlights an issue that needs to be addressed in Vietnam sooner
rather than later. There is no separation between "law" (the Courts and
Judiciary system) and "state" (the Government at all levels and all forms. I
believe our elected officials here are as honest, well-meaning, forthright
and as genuine as elected officials in most other places in the world. I
don't have much problem with the people in Government. My problem is with
the APPARATUS of Government!
 
   In Australia, which has the rule of law, the Government can only make new
laws wich are acceptable under our constitution - and to the people! Every
Australian citizen in the country has the right to petition the courts to
say that this "law" is unconstitutional. Then the judges must do their work
to decide if the Government is right or the Constitution is right. Since the
election process is open to everybody in Ausrralia, the population can also
use the threat of "we will vote against you at the next election" if you
bring in this rule. I believe this is one of the strengths of "rule OF law".

 
   To answer your question directly anh Toan, in essence, "rule BY law" is
dictatorial; "rule OF law" is democratic. To show an example, a father
"rules BY law" when he uses his age, weight, strength, position, etc. to
tell his child what that child can or cannot do. It is autocratic and there
is no avenue for appeal. However, the "rule OF law" is when the father does
the same thing, however, the child can appeal to the mother for an
independent judgement on what the father wants. The father has no right to
influence the mother's decision, and the mother must judge "what is right",
not what the father wants. If the mother agrees with the child, and
disagrees with the father, the father must abide by the mother's decision.
If the mother agrees with the father, then the child must abide by the
decision. Does that sound familiar to anyone???
 
   Now it becomes interesting - in a "Rule OF law" situation. Although the
father must accept the mother's final judgement, BOTH the father AND the
child have the right to appeal against the mother's decision. In this
circumstance, the father has an advantage because the father can change the
"rules" much more easily than the child can. If the father disagrees with
the mother's judgement, the father can "change the playing field" which
could change the mother's judgement(s) in the future. The child can only
appeal again and again and again to the mother. That is one of the
weaknesses of "Rule BY Law".
 
   I humbly suggest that EVERY parent in the world knows that human nature
leans towards "rule OF law" rather than "rule BY law". We can see this very,
very easily and plainly in our children - If Mom says no, kids immediately
go and ask Dad!!! The kid is looking for WHAT the law is, not WHERE, WHY of
HOW the law works. The kid just wants to know what is OK and what is not OK.
Simple as that!
 
   We are all humans, and the adults of the children we used to be, so it is
not difficult to see why we often seek an alternative judgement on our
specific situation  or cirrcumstance.
 
"No change comes without self-change."  (c) Shane Wall
Shane
-------------------------------------
Mr. Shane Wall
Principal
 
shane.wall at translingualexpress.com
Mbl: +84 (090) 9484 753
Tel: +84 (8) 820 9143
 
www.translingualexpress.com <http://www.translingualexpressk.com/> 
-----Original Message-----
From: vnbiz-bounces at mail.saigon.com [mailto:vnbiz-bounces at mail.saigon.com]
On Behalf Of ToanDucPham at GMail.com
Sent: Friday, October 27, 2006 2:10 PM
To: VnBiz
Subject: [Vnbiz] 'rule of law' and/or 'rule by law'



Hi anh Andrew, anh Hoanh, and other CACEs,
As anh Andrew mentioned the term 'rule of law', may I ask:

1.	What is 'rule of law'? 

2.	What is 'rule by law'? and 

3.	Therefore, the difference between them?

Please enlight/educate me.  Thanks.
Cheers.  Toan.
 
 
 
 
 
 
On 10/27/06, Andrew Wyatt <abwyatt at gmail.com> wrote:
> [Vietnam Business Forum]
> What can we say? That we have a long way to go before we have real 'rule
of law'? 
> Actually, I have a similar story which says something about the role of
local gangsters. When my next door neighbour wanted to clean up or move out
all the drug addicts that used to be a blight on our hem in a District of
Saigon, he contacted the local gangster (admittedly a friend of his) instead
of the local police. The hem has been 'clean' ever since. 
> Cheers
> Andrew
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