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

[Craig Stevenson]

And another:

(not my writing)

*"What Is Rule of Law? *

Bo LI

Perspectives, Vol. 1, No.
5<http://www.oycf.org/Perspectives/5_043000/Contents.htm>

"We are free because we live under civil laws." --- Charles de Secondat
Montesquieu

"Rule of law" is one of the much said but little understood concepts in
popular press and daily conversations in China today. What is rule of law?
What is its significance? Does rule of law mean that there is no "rule of
person?" What are the institutional conditions and cultural content of rule
of law? How do we achieve rule of law? I intend to tackle these questions in
a series of essays. In this essay, I will focus on the meaning of the rule
of law and its values. In the next essay of this series (to be published in
the June issue of "Perspectives"), I will talk about the implementation.

As a starting point, I want to point out that when we say "rule of law"
these days, we mean something different from the instrumentalist conception
of "rule by law" of the legalist philosophers in ancient Chinese history.
When we say "rule of law" today we intend to describe a key component of the
social and political orders found in the United States and other liberal
democratic states of our time. In other words, by "rule of law" we mean a
western tradition that can be traced back to the Roman republics and was
fully developed by the liberal constitutionalism. It is characterized, in
the words of Max Weber, by "legal domination."

The difference between "rule by law" and "rule of law" is important. Under
the rule "by" law, law is an instrument of the government, and the
government is above the law. In contrast, under the rule "of" law, no one is
above the law, not even the government. The core of "rule of law" is an
autonomous legal order. Under rule of law, the authority of law does not
depend so much on law's instrumental capabilities, but on its degree of
autonomy, that is, the degree to which law is distinct and separate from
other normative structures such as politics and religion. As an autonomous
legal order, rule of law has at least three meanings. First, rule of law is
a regulator of government power. Second, rule of law means equality before
law. Third, rule of law means procedural and formal justice. We will take up
these meanings of rule of law one by one.

First, as a power regulator, rule of law has two functions: it limits
government arbitrariness and power abuse, and it makes the government more
rational and its policies more intelligent.

The opposite of rule of law is rule of person. There are two kinds of rule
of person. The first kind is "rule of the few persons," examples of which
include tyranny and oligarchy. The second kind of rule of person is "rule of
the many persons," an example of which is the ancient Greek democracies. The
common feature of rule of person is the ethos that "what pleases the
ruler(s) is law." That is, under rule of person, there is no limit to what
the rulers (the government) can do and how they do things.

In contrast, a key aspect of rule of law is "limitation;" i.e., rule of law
puts limits on the discretionary power of the government, including the
power to changes laws. This is why the western juridical tradition is Roman,
not Greek. One of the major problems of ancient Greek democracy is that its
conception of law does not contain the idea of limitation. The Greek word
"eleutheria," commonly translated as "freedom," connotes a freedom that
extends into the principle that what pleases the people is law. In other
words, there were no limits to the (democratic) governments of ancient
Greece, and the popular will, be it short-term passion or long-term
rationality, would always become law if the demos so wished. "As soon as law
lost its sacred character, popular sovereignty was placed above the law,
and, by that very act, government by laws was once again fused and confused
with government by men" (Sartori, 1987, p. 307).

Unlike the Greek system, the Roman system of law limited the ability of the
rulers to change laws, and it greatly influenced the Anglo-Saxon version of
rule of law. At the core of the Anglo-Saxon conception of rule of law is the
idea that the discretionary power of the government should be limited.
"[W]henever there is discretion there is room for arbitrariness, and . . .
in a republic no less than under a monarchy discretionary authority on the
part of the government must mean insecurity for legal freedom on the part of
its subjects" (Dicey, 1982, p. 110). The solution to this problem, say
liberal democrats, is rule of law.

There are two common misconceptions in China. First, when some writers
describe "rule of person," they mean only "rule of the few persons." These
writers think that, as long as we have democracy ("rule of the many"), we
have justice and rule of law. These writers forget that the popular will can
rule with or without constitutional and legal limits. Without constitutional
and legal limits, popular will can be as destructive as, or even more
destructive than, the unfettered discretion of "the few." Examples include
the injustices of classical Greek democracy, terrors of the French
Revolution and the crimes against humanity committed during the Chinese
Cultural Revolution. Second, some writers in China think that, as long as
laws are passed through democratic procedures, they represent the general
will (a la Rousseau) and therefore are just laws. These writers forget that
"popular will" is not necessarily "general will" (as Rousseau himself warned
us more than two hundred years ago). Unfettered popular will can not only
deviate from the Rousseauian general will, it can run against and destroy
the general will.

In more specific terms, how is government arbitrariness constrained? The
answer lies in several important principles of rule of law. First, if we are
to limit government caprice, rule of law requires the supremacy of law as
opposed to the supremacy of the government or any political party. To the
noted English jurist A. V. Dicey rule of law means, "in the first place, the
absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power, and excludes the existence of arbitrariness,
of prerogative, or even wide discretionary authority on the part of the
government" (Dicey, 1982, p. 120).

Second, if the government is to be restricted in its exercise of discretion,
the government has to follow legal procedures that are pre-fixed and
pre-announced. As F. A. Hayek puts it, rule of law "means that a government
in all its actions is bound by rules fixed and announced beforehand -- rules
which make it possible to foresee with fair certainty how the authority will
use its coercive powers in given circumstances, and to plan one's individual
affairs on the basis of this knowledge" (Hayek, 1994, p.80). For example, in
constitutional and criminal law, there is a prohibition on "ex post facto"
laws, that is, no one should be punished for a crime not previously defined
in law. In other words, the government cannot simply define a new crime and
apply the new definition retrospectively. The rationale for this principle
is that, first, the government should not be allowed to abuse its power by
punishing individuals for political or other conveniences; second, it would
be grossly unjust and oppressive for the government to punish someone for
behavior that was not known to be criminal at the time of commission; third,
to so punish individuals would result in so many uncertainties that it would
create great inefficiencies.

Rule of law as a constraint on government power is well recognized, but its
cognitive value in enhancing government's rationality is often less
understood. Rule of law not only limits the arbitrariness of the government,
it also makes the government more intelligent and articulate in its decision
making. For one example, as Professor Stephen Holmes writes, "[o]nly a
constitution that limits the capacity of political decision makers to
silence their sharpest critics . . . can enhance the intelligence and
legitimacy of decisions made" (Holmes, 1995, p. 8). For another example, the
key reason why liberal democrats do not believe in the pure will theory of
legality is that, without rule of law as a limit, popular will can easily be
corrupted by passions, emotions and short-term irrationalities. As such,
liberal democrats demand rule of law because it helps us to behave according
to our long-term interest and reason.

One comment on the relationship between rule of law and liberalism is due
here. Liberalism requires a limited government, and it naturally finds rule
of law (as a regulator of government power) a necessary institutional
arrangement. We can say that liberalism requires rule of law, and that rule
of law is an institutional realization of liberal ideals. Historically,
however, rule of law existed before liberalism. According to Dicey, rule or
supremacy of law was firmly established in England before the end of the
sixteenth century, when liberalism as a political and social philosophy had
not been completely born yet -- John Locke was born in 1632 and his Second
Treatise of Government was first published in 1690. However, rule of law as
a constraint on government arbitrariness might have provided a strong
institutional and cultural support for the birth of liberalism in England,
whose core teachings included the doctrine of limited government and the
right of revolution.

The second meaning of rule of law, according to Dicey, is equality before
law. "[N]ot only that . . . no man is above the law, but (what is a
different thing) that . . . every man, whatever be his rank or condition, is
subject to the ordinary law of the realm and amenable to the jurisdiction of
the ordinary tribunals. . . . [T]hough a soldier or a clergyman incurs from
his position legal liabilities from which other men are exempt, he does not
(speaking generally) escape thereby from the duties of an ordinary citizen"
(Dicey, 1982, p. 114-115). To Dicey, even in 1915 this principle of rule of
law was not universally true among the liberal democratic countries of
Europe. In England the idea of legal equality had been "pushed to its utmost
limit" by 1915, but in France the officials were "to some extent exempted
from the ordinary law of the land, protected from the jurisdiction of the
ordinary tribunals, and subject in certain respects only to official law
administered by official bodies" (Dicey, 1982, p. 115). By now, however,
equality before the law is a universally recognized principle in all liberal
democratic countries, although different countries might, at the margins,
have different interpretations of what that equality entails.

The third meaning of rule of law is formal or procedural justice. What is
formal or procedural justice? Before we answer this question, we need to
answer a more preliminary question: what is formalism? Max Weber categorizes
legal systems into four kinds: formally irrational, substantively
irrational, formally rational, and substantively rational. Rationality
refers to the generality and universality of law. Formality refers to the
characteristic that the criteria of lawmaking and lawfinding are intrinsic
to the legal system itself; that is, all rules, procedures and decisions can
be deduced from the legal system itself. In contrast, a legal system that
emphasizes substantive qualities of lawmaking and lawfinding uses factors
outside law, such as ethical, emotional, religious or political factors, to
evaluate cases. To Weber, only a formally rational legal system can achieve
"legal domination" (rule of law) through consistent application of general
rules, because only a formally rational legal system can maintain a
"consistent system of abstract rules" that is necessary for rule of law.

A formally rational legal system, according to the western legal tradition,
also results in justice that we desire. This kind of justice is called
formal or procedural justice, which "connotes the method of achieving
justice by consistently applying rules and procedures that shape the
institutional order of a legal system" (Shen, 2000, p. 31). More
specifically, formal or procedural justice consists of several principles.
First, the legal system must have a complete set of decisional and
procedural rules that are fair. Second, the fair rules of decision and
procedure must also be pre-fixed and pre-announced. Third, these decisional
and procedural rules must be transparently applied. Fourth, these decisional
and procedural rules must be consistently applied. When these four
conditions are satisfied, western judges and lawyers will say that they have
achieved a certain kind of justice, which is called formal or procedural
justice. Note that this notion of justice is more concerned with process and
procedure than with the end result. As Selznick puts it, "legality has to do
mainly with how policies and rules are made and applied rather than with
their contents" (Selznick, 1969, as cited in Shen, 2000, p. 30). In other
words, as long as the process is fair, transparent and consistent, justice
is obtained and legality is achieved.

One example will help illustrate the concept of procedural or formal justice
in contrast to substantive justice. If, in truth, a person has killed
another person, substantive justice requires that the killer be punished
according to law. However, if the killer is illegally tortured by the police
to confess to his crime and, as a result of the confession, the police find
conclusive evidence (i.e., evidence proving guilt beyond reasonable doubt),
such as the weapon, the body of the victim, etc., for the court to convict
the killer (which results in substantive justice), there is no procedural
justice because the process of finding guilt has violated the basic rights
of the killer who, before the conviction, is a citizen entitled to the full
protection of the Bill of Rights.

In this case, based on the well-established law of criminal procedure, an
American judge will not allow the record of confession (obtained through
torture) and anything found as a direct result of the confession (such as
the weapon and the body) to go into the court as evidence. As such, the jury
will never see these items as evidence, and if the prosecutors have no other
good evidence, the killer is likely to be acquitted, even though substantive
justice requires that the killer be punished (because, for example, the
weapon and the body might prove the guilt beyond reasonable doubt due to the
fact that the killer knows where the weapon and the body are, and the weapon
contains the killer¡¯s fingerprints.) In this way, in the United States,
procedural justice triumphs over substantive justice in this particular
case. In the end, the American judge will claim that justice is done simply
because the pre-determined procedural rule (e.g., illegally obtained
evidence is not admitted in court) is consistently and transparently
applied.

One prominent Chinese diplomat in the United States once complained to some
American friends that the United States should not blame China for human
rights violations. The United States itself, the diplomat observed, is not a
just society. The diplomat then went on to use the case of O. J. Simpson as
an example of the lack of justice in American society. With all the
evidence, said the diplomat, it was obvious that Mr. Simpson was guilty, and
an overwhelming majority of American people also thought he was guilty, but
the court set him free in the criminal trial. "Is this justice?" The
diplomat asked in disbelief. Obviously, the diplomat did not understand the
concept of procedural justice. In the case of O. J. Simpson, the judge could
confidently conclude that justice was achieved because the trial was
conducted according to pre-fixed and pre-announced procedures in a fair,
transparent and consistent way. If the government could not prove Mr.
Simpson's guilt beyond reasonable doubt, Mr. Simpson should be set free.
This procedural rule ("prove guilt beyond reasonable doubt in an ordinary
court") was a well-established legal rule known long before the trial
started, and the rule was fairly, transparently and consistently applied to
Mr. Simpson's trial.

You might ask: does it make sense to emphasize procedural justice? The
general answer is yes. In a system that sacrifices procedural justice for
the sake of substantive justice, the danger of arbitrary government power
and the threat to individual liberty will be too great. Eventually, that
system will lead to substantive injustice as well. In contrast, in a system
that emphasizes procedural justice, arbitrary government power will be
checked, liberty will be protected, and substantive justice will be
preserved in the long term (if we believe that truth is best obtained
through contest and debate between equals).

More specifically, formal or procedural justice has at least three values.
First, without fair and just procedure, there is no guarantee that the end
result will be just (that is, substantive justice cannot be guaranteed). As
such, procedural justice is seen as a necessary condition for substantive
justice. This is why the western legal tradition places a much higher value
on formal or procedural justice than its East Asian counterpart, which puts
more emphasis on substantive justice. In fact, some western legal scholars
regard procedural justice as the only workable method for reaching
substantive justice, and to these scholars procedural justice should be the
only concern of the players within the formally rational legal system.

Second, formal or procedural justice is a condition for constraining
government arbitrariness and protecting individual rights. When the
government is required to follow pre-fixed, transparent and fair procedures
before it can deprive a person's life, liberty or property, the danger of
government arbitrariness is substantially reduced and the prospect for
wrongful deprivations of individual rights is also significantly diminished.

Third, as Max Weber points out, procedural justice results in consistency,
predictability and calculability that are desirable aspects of economic and
social life. This second value of procedural justice is independent of any
value we place on substantive justice and strengthens the argument for the
western tradition of emphasizing procedural justice.

A comment on formalism is due here. Marxist writers often criticize the
capitalist style rule of law as a sham. In these writers' vocabulary,
"formal" is often synonymous with "superficial" and "unreal," and the
distinction between formal and substantive justice is turned into a
distinction between apparent and real justice. This characterization of rule
of law is a gross mis-characterization. In western law, being formal has
nothing to do with being superficial or unreal. "At the heart of the word
'formalism' . . . lies the concept of decisionmaking according to rule"
(Schauer, 1988, p. 510). Furthermore, being formal is probably the only way
through which a juridical order can achieve certain level of rationality.
Professor Giovanni Sartori puts this point in more stark terms. "When we
speak of 'juridical form' we are singling out the very requisite of a legal
order. The form of law and the formal nature of law constitute . . . the
characteristics by virtue of which a law is a law. . . . Formal is the
method, not the result."

We have discussed three core meanings of the western conception of rule of
law. Several caveats are in order. First, we have so far ignored one
fundamental question. Those laws that constitute constraints on government
arbitrariness and establish formal justice cannot be just any laws. They
also have to be "civil" (a la Montesquieu) or just laws in some substantive
sense. We have so far left the question, "which laws are civil or just
laws?" unanswered. In other words, we have been focusing exclusively on the
form of law, not the content of law. This focus is not accidental, because
it has been the focus of western jurisprudence in the last one hundred
years. In the western system of liberal democracy, the substantive justice
(justice in content), or "iustum" in Latin, of law has been guaranteed by a
constitutional state. "A large number of constitutional devices are, in
effect, intended to create the conditions of a lawmaking process in which
ius [the Latin word for law] will remain tied to iustum [what is just], in
which law will remain the right law. For this reason legislation is
entrusted to elected bodies that must periodically answer to the electorate.
And for the same reason we do not give those who are elected to office carte
blanche, but we consider them power holders curbed by and bound to a
representative role" (Sartori, 1987, pp. 322-323). As such, western
jurisprudence could afford to focus exclusively on the form of law.

This exclusive focus on the form of law is, however, also worrisome. Because
of the existence of the constitutional guarantee on the substantive justice
of law, western jurisprudence has come to have a purely formal definition of
law. "Unfortunately . . . the formalistic school of jurisprudence completely
overlooks . . . the fact that the formal definition of law presupposes the
constitutional state. Therefore, the high level of systematic and technical
refinement achieved by this approach cannot save it from the charge of
having erected an unsafe juridical edifice open to easy conquest" (Sartori,
1987, p. 323). As such, when we study the western conception of rule of law,
we should not forget that western legal scholars have been living in a
constitutional state for so long that they are used to forgetting the
importance of liberal constitutionalism in guaranteeing the just content of
law. We Chinese do not have such luxury -- we do not have a constitutional
state yet. When we talk about legality in China, we should not focus only on
the form of law; we should also pay particular attention to the content of
law. In fact, as we will see in the next essay of this series, without a
constitutional state, we probably cannot guarantee anything: neither the
content nor the form of law can be guaranteed to be just. In other words,
without a constitutional state, neither substantive justice nor procedural
justice, either in lawmaking or in the application of law, can be
guaranteed. In the next essay, we will therefore spend a good amount of time
on liberal constitutionalism.

Second, promoting rule of law does not mean that we should, or can,
eliminate rule of person. Literal rule of law has its own costs (such as
rigidity) and in some cases it can conflict with our sense of justice. In
addition, it is probably impossible to eliminate rule of person completely.
After all, laws are not given; they have to be made by certain people. Laws'
applications are not automatic; they have to be applied by certain people.
Even in the most advanced liberal democratic countries of our time -- the
countries that are regarded as having the most developed systems of rule of
law -- human factors play important roles in shaping traditions, customs and
institutional cultures that are integral parts of the liberal democratic
machinery. The real question is not whether we should eliminate or keep rule
of person. The real question is about how to strike a balance between rule
of law and rule of person so we can achieve liberty, equality, and justice.
In this regard, liberal constitutionalism has been the only successful
system. "Liberal constitutionalism is the technique of retaining the
advantages of [rule of law as well as rule of person] while lessening their
respective shortcomings" (Sartori, 1987, p. 308). We will discuss how this
is so in the next essay.

We have discussed the meaning and the ideals of rule of law in this essay.
In the next essay of this series, we will turn to the implementation of rule
of law, particularly liberal constitutionalism.

(The author is an attorney with the New York law firm of Davis Polk &
Wardwell.)

References:

1. Dicey, A. V. Introduction to the Study of the Law of the Constitution.
Indianapolis: Liberty Fund, 1982.

2. Hayek, Friedrich. The Road to Serfdom. Chicago: University of Chicago
Press, 1994.

3. Holmes, Stephen. Passions and Constraint: On the Theory of Liberal
Democracy. Chicago: University of Chicago Press, 1995.

4. Sartori, Giovanni. The Theory of Democracy Revisited. Chatham, New
Jersey: Chatham House, 1987.

5. Schauer, Frederick. "Formalism." Yale Law Journal 97 (1988): 509-548.

6. Selznick, P. Law, Society and Industrial Justice. New York: Russell Sage
Foundation, 1969.

7. Shen, Yuanyuan. "Conceptions and Receptions of Legality: Understanding
the Complexity of the Law Reform in China." In The Limits of the Rule of Law
in China, ed. Karen G. Turner, James V. Feinerman and R. Kent Guy. Seattle:
University of Washington Press, 2000.

8. Weber, Max. Economy and Society, ed. G. Roth and R. Wittich. Berkeley:
University of California Press, 1978.

**

  "



On 10/30/06, Craig Stevenson <cstevenson2000 at gmail.com> wrote:
>
> 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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> >
> >
>
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