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

Sun Oct 29 19:30:57 PST 2006

Not a lawyer, but have studied a fair amount of political philosophy and I
believe it is a wonderful articulation of the two phrases.  I will look for
a "definition" if you will.

Craig

On 10/29/06, Tran Dinh Hoanh <tdhoanh at gmail.com> wrote:
>
>
> [Vietnam Business Forum]
>
>
>
> 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]
> >
> >
> >
> >
> >
> >
> > 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
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