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

[Tran Dinh Hoanh]

Dear anh Craig and CACC,

Thanks for good postings, anh Craig.

I just want to make a clarification on the message below.  This
message is obviously written by a person with a religious perspective.
  Note that he writes: "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)".

Without arguing that he is right or wrong, I would like to point out
that he uses the word "rule of law" to indicate "rule of natural law
and of its maker, i.e., God."  This is an abusive use of language.
Basically he takes the universally-respected phrase "rule of law" and
gives it a new, religious meaning.

The original (and main stream) concept "Rule of law" is something
completely different.  It only means everyone is ruled by the law, is
under the law, and no one is above the law.

Don't let this kind of abusive use of language confuse you.

(As you know, I don't mind to be religious myself.  But when religious
people become abusive, they annoy me.  God and Jesus and the Buddha
are not abusive).

Again, outside of this kind of religious vs. secular philosophical
dispute, "rule of law" and "rule by law" are very much the same, and
they mean "Everyone has to follow the law."

Have a great day!

Hoanh
___________

On 10/30/06, Craig Stevenson <cstevenson2000 at gmail.com> wrote:
>
> [Vietnam Business Forum]
>
>
>
>
>
> 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; 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
-- 
Tran Dinh Hoanh, LLB, JD
Attorney of Law
Washington DC