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

[Craig Stevenson]

Here's a poli philo perspective
(not my writing to follow)
 "Rule of Law vs. Rule by Law

An important distinction needs to be made between *rule of law* and *rule by
law*.

(1) *Rule of law* is an intrinsically moral notion. Indeed, I don't see how
one can have a consistent theory of rule of law without appealing either to
natural law theory or to some higher rule by law (e.g., divine command
theory).

(2) *Rule by law* is very different, despite some superficial similarities.
Rule by law is prudential: one rules by law (properly speaking) not because
the law is higher than oneself but because it is convenient to do so and
inconvenient not to do so. In rule of law, the law is something the
government serves; in rule by law, the government uses law as the most
convenient way to govern.

(3) The two chief arguments for rule by law rather than rule of law are
exactly the same ones that are always used against natural law theory:

(a) disagreement and uncertainty in moral judgments;
(b) the claim that rule of law is seminal anarchy.



(4) The chief arguments against rule by law and for rule of law are exactly
the same ones that are always used against the opponents of natural law
theory:

(a) the question of how one can have authority without any moral basis;
(b) the claim that rule by law is seminal despotism.



(5) Rule by law can be either ad hoc (which is genuine despotism) or
principled. Principled rule by law theory shares with rule of law theory the
arguments that a stable, generally recognized law is needed in order to
maintain generality, impersonality, and effectiveness of government. Thus
principled rule by law theory allows for what Fuller has called "the
internal morality of law" to the extent that this is prudentially
justifiable as conducive to the ends of government. (There is an interesting
paper by Kenneth Winston on this subject in the context of Chinese Legalism
at SSRN <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=757354>; much of
what I say in this post is influenced by Winston.)

(6) Much of what we call rule of law today is really rule by law; a very
serious equivocation given that they tend in entirely different directions."





On 10/29/06, Craig Stevenson <cstevenson2000 at gmail.com> wrote:
>
> 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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