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

[Tran Dinh Hoanh]

Dear anh Toan, anh Shane & CACC,

That is an awesome question, brother Toan.  A most complex question
that anyone can ask.  I had wanted to answer that question, but had
been a little busy, until anh Shane's message reminded me of this.

I.  "Rule of Law" is a fundamental legal philosophical principle of
governance, which has been explored by countless philosophers and
legal scholars.  It can start out simple enough, but as any
philosophical matter, the more you get into it the more complex it may
become.

A good place to read about rule of law is Wikipedia at

http://en.wikipedia.org/wiki/Rule_of_law

Here is what written in Wikipedia:

"The rule of law is the principle that governmental authority is
legitimately exercised only in accordance with written, publicly
disclosed laws adopted and enforced in accordance with established
procedure decided by government."

This implies the principle that every one is equal under the law as
anh Shane defines.

"Rule of law," in simple terms, means everyone, including the
government, every government agency and every government official, has
to follow the law.

But if you read my preceding sentence (as well as the Wikipedia
sentence above) carefully, you will immediately ask:  "But what is the
law?"

Wikipedia says the law has to be "written, publicly disclosed laws
adopted and enforced in accordance with established procedure decided
by the government."  This is generally the requirement for the law to
be considered legitimate:  It has to be written somewhere, it must be
public for all to know, it must be made and enforced according to a
set of procedures decided upon by the government.  Please note that
"established procedure" plays a big role in defining the legitimacy of
the law.

So far so good, but here is the next problem--"Procedures established
by the government."  What is it?   Of course, every legal procedure
has to be established by the government (and by no one else).   But
what if the government is abusive?   What if a bunch of gun-toting
guys do a coup and establish a new set of procedures for the
constitution and for the laws of the nation (which has just happened
in Thailand last month)?  Would those new procedures and new laws
under such procedures be considered legitimate?

Or a group of dictators establish their own procedures and laws and
force the entire nation to follow their rules.  Would the law in this
case be legitimate at all?

When force and coercion are used to established procedures and laws,
the "rule of law" is very much the "rule of force," isn't it?

So at a deeper level, "rule of law" implies a system of government in
which legal procedures and laws are established with the consent of
the people.  Ultimately, rule of law implies a democratic society in
which the citizenry is the master of the nation, and the government
and the law are established with the people's consent.

How do we apply this principle in real life with all kinds of
circumstances  like war time, peace time, one party, multi-party,
political coup, external interference, etc... is a matter of the art
of governing.  They can be complex, but as long as we understand the
principle, we will do fine.

II.  The term "rule by law" usually occurs in the context of "rule by
law" versus "rule by morality," which is a variation of the issue of
"natural law" versus "human-made utilitarian law."   These are legal
philosophical disputes,  which are very abstract but very fundamental.

*  The natural law school argues that all human laws are ultimately
based on a set of fundamental natural laws.  These fundamental natural
laws are laws like 'Thou shall not kill" or "Thou shall not steal" or
"thou shall not lie" etc.  These are called "natural law" because they
exist naturally in all human societies anywhere in the world,
regardless of legal systems.

You can see that these fundamental natural laws are also fundamental
morality rules.

Lurking behind the natural law argument is the argument that these
natural laws are created by God, which is a biblical argument.  So you
can see that the natural law theory tends to be religious based
(although it doesn't have to be).

So the natural law school is basically a morality based school, which
tends to be religious in practice.  This school sometimes use
incorrectly (or abusively, in my opinion) the term "rule of law" to
indicate their school.  In the mind of its proponents, "rule of law"
means "rule of natural law from God."  Let me repeat, this is a wrong
way to use the term "rule of law" and this abusive way of using
language produces quite a bit of confusion.

*  Against this natural law school is a utilitarian school that argues
that all human laws are strictly utilitarian--meaning the laws are
made by us humans to serve the best benefits of the humans.  In this
school, there is no such thing as natural law.  "Thou shall not
murder" is not a natural law but a human made law that serves the
benefit of human societies.

This school is the "rule by law" school.  Meaning, we all are ruled by
the law, and not by any natural law or any maker of natural law, i.e.
God.

In summary, "rule by law" versus "rule by natural law (and ultimately
by God)" is a legal philosophical dispute which, at a very fundamental
level of social engineering, may impact a society tremendously.
People sometimes call this dispute "rule by law" versus "rule of law,"
but in my opinion, the term "rule of law" used in this context is
wrong and abusive.

(Each school's argument has some strength and weakness, which I don't
want to cover now, so not to cluster my message with lots of complex
abstract arguments.)

Outside this kind of philosophical dispute, "rule of law" and "rule by
law" may be used interchangeably in every day's speaking, and they
mean "everyone has to follow the law."

Hope this helps.  Have a great day!

Hoanh
_________

On 10/29/06, Shane Wall <shane.wall at translingualexpress.com> wrote:
>
> [Vietnam Business Forum]
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> 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--
Tran Dinh Hoanh, LLB, JD
Attorney of Law
Washington DC