History and Essential Principles of Rule of Law
Abraham G. Ghiorgis
The "History and Essential Principles of Rule of Law" pasted below is a compilation of two pieces on the essential principles of rule of law and its history prepared by "Democracy Web: Comparative Studies in Freedom." For ease of reading, I numerated the subtitles. It helps all of us to consult the experts, and to absorb the theoretical principles free from our biases and prejudices of the Eritrean national liberation struggle.
Eritrea has been an independent nation now for over two decades. Yet, it is a nation that has not yet implemented its own ratified constitution. It is a nation that is ruled by an authoritarian regime through arbitrary edicts and rules. Human rights, birth rights and all civil liberties of Eritreans irrespective of where they live (inside Eritrea or abroad) are violated left and right.
The Eritrean struggle like all others in the world has always been a struggle to establish liberty and enshrine guaranteed civil liberties for all Eritreans. And only the rule of law guarantees and protects civil liberties. Not elections and multi-party contests accomplish that, though these are desirable items. If these items as stand alone by themselves were so good without being coupled with the rule of law, then there would have been no human right violations in many African nations such as for example: Egypt, Kenya, Nigeria and Ethiopia - despite the fact that these nations have working constitutions, parliaments, relatively free press, multiparty contests, relatively free judiciary and etc. (I do not believe Eritrea is even in the same league as these nations, since Eritrea is a lawless state.) As a rule of thumb, a nation that abides by the Universal Declaration of Human Rights respects the rule of law.
The Eritrean leaders do not want their power to be constrained by the ratified constitution - a document that has a superb stand on civil liberties and human rights. The Eritrean leaders betrayed the Eritrean people. The Eritrean people innocently bestowed a complete trust on mere mortals and sinners like all of us. They naively assumed the Eritrean leaders would institutionalize freedom and liberty. They assumed that Lord Acton's dictum "power corrupts and absolute power corrupts absolutely" applies to other people and not to Eritrean leaders.
Now through experience of hardship and abuse, the Eritrean people realize that the Eritrean leaders have no concept of the rule of law. This is immaterial whether this is through malice or ignorance. The real impact is that the PFDJ has made Eritrea a failed nation in the making.The PFDJ substantiates its authoritarian rule in Eritrea using fancy and ear pleasing terms of "equality" and "justice." Equality and justice are meaningless terms and unachievable if there are no rule of law and democracy in a nation. In particular, "the rule of law is a bulwark against tyranny." The Eritrean people have already figured out the PFDJ -- it cannot fool any Eritrean even those who are associated with its organization. This is the easy part.
The hard part is that we have some in the opposition that are as clueless as the PFDJ when it comes to the concept of the rule of law. Just visit some of the famous Eritrean websites and you will start scratching your heads. To lack a knowledge on a certain subject is not a sin. However, not learning from others and not studying from books and not doing diligently once homework is a blunder, this applies in particular to those who present themselves to us as opinion makers and shakers in the Eritrea liberal democratic opposition. Their tremendous contributions towards the struggle for liberty in Eritrea is laudable, but that should not shelter them from constructive criticisms when they are obviously on the wrong. No one should arrogate to oneself to have the last word on every subject and I might add on subjects that sometimes appear to be completely foreign to one. Eritrea is a small nation. We already have an autocrat in the name of Isaias. One Isaias is too many for Eritrea. The last thing we need in the internet is another Isaias who polices our thoughts.
In the final analysis, our fight against the authoritarian regime in Eritrea is a fight for constructive and positive ideas. It is a peaceful struggle to transform our society from a society of violence -- that at first was imposed on us in order to liberate Eritrea from colonizers but once Eritrea is liberated should not continue as if we were still in the armed struggle -- into a society of peace and civil liberties protected by the rule of law.
Abraham G. Ghiorgis
Note: the blogspot noted below has a reading list of books on the subjects of property rights, rule of law, and constitutional government. Also included are previous articles published in Eritrean websites and other relevant articles on Eritrea and Ethiopia. The site is as follows: http://eritreamereb.blogspot.com/
History and Essential Principles of Rule of Law
By "Democracy Web"
(I) Rule of Law: Essential Principles
"...the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."
Thomas Paine, Common Sense, 1776
"Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority."
Basic Law of the Federal Republic of Germany, Article 1
"Government in Saudi Arabia derives power from the Holy Koran and the Prophet's tradition."
The Basic Law of the Kingdom of Saudi Arabia, Article 7
A. The Ultimate Breakdown
The Crimean Tatars, a small Muslim group that had settled on the Crimean peninsula in the 14th century, had loyally joined in the Soviet Union's battle against Nazi Germany. Yet, during the course of World War II, Soviet leader Joseph Stalin questioned the Tatars' loyalty as a community because some Tatars had reportedly served in Nazi battalions. Stalin ordered the summary deportation of the entire Tatar population to Central Asia.
On May 18, 1944, agents of the Soviet secret police (the NKVD) began rounding up Tatars and deporting them by train to Uzbekistan and Kazakhstan. Within two days, approximately 200,000 Tatars had been exiled, and approximately a third of those exiled later died from hunger, exposure, and disease. Stalin's regime undertook similar actions against other small ethnic groups in the Caucasus in the attempt to rid the region of all minority communities.
The ethnic cleansings that occurred under Stalin were illustrations of his arbitrary and unchecked rule, which cost tens of millions of people their lives. Such abuses serve as examples of the ultimate breakdown in the rule of law.
B. A Necessary Accompaniment for Democracy
In democracies, the use of arbitrary power is considered anathema to the rule of law. Fundamentally, constitutional limits on power, a key feature of democracy, requires adherence to the rule of law. Indeed, the rule of law could be defined as the subjugation of state power to a country's constitution and laws, established or adopted through popular consent. This is the meaning of the commonly cited phrase "a government of laws, not men," made famous by John Adams, the second president of the United States. Under such a system, law should be supreme to the capricious authority of any individual. The rule of law is the supreme check on political power used against people's rights. Without the regulation of state power by a system of laws, procedures, and courts, democracy could not survive.
Although the rule of law protects the majority from arbitrary power and tyranny, it should also protect the minority both from arbitrary power and the "tyranny of the majority" (see also "Majority Rule/Minority Rights"). Without the rule of law, there is likely to be either a dictatorship or mob rule. Some revolutionary thinkers have extolled mob rule as the highest form of political and social justice. In reality, however, mob rule has meant violence and political chaos, which are the very same conditions that often give rise to dictatorship, the exercise of arbitrary power, and the denial of individual rights.
C. The Rule of Law: Contrasting Principles
Much of what Americans consider to be the rule of law is derived from Anglo-Saxon legal traditions (see History section below). But there are many variations in how different countries organize legal and political institutions and apply the rule of law. These differences can often be confusing when talking about basic principles. For example, the American and British principles of "innocent until proven guilty," the right not to incriminate oneself, and the right to be tried by a jury of one's peers are so deeply ingrained in the fabric of the law and society that they might be considered absolute principles. Yet the rest of Europe, most of which follows a Roman law tradition, does not operate by any of these tenets. Principles of the French system, such as the assumption of guilt or the legality of indefinite periods of incarceration, violate the American and British standards of justice. Furthermore, the many violations by modern democracies of their own rule of law principles justify the questioning of its absolute validity.
D. The Rule of Law: Common Definitions
Still, the adoption and practice of basic principles of the rule of law are clear barometers for any democracy. Apparent contradictions in principle or practice do not negate the rule of law's overall importance. The awful consequences of the breakdown of the rule of law in dictatorships, as recounted above, make its importance self-evident. In democratic societies, deviations from the principles of the rule of law, such as slavery and systematic discrimination in the United States, or the unequal treatment of women historically, serve as powerful arguments for the fulfillment of those principles.
Thus, while there is no set definition of the rule of law encompassing all its practices, there is a basic realm of common principles. The scholar Rachel Kleinfeld Belton identifies five:
- a government bound by and ruled by law;
- equality before the law;
- the establishment of law and order;
- the efficient and predictable application of justice; and
- the protection of human rights.
One might add that the Western concept of the rule of law should also include the separation of religion and state as a basic constitutional principle, since the influence of both state and religious institutions in the application of the law could lead to arbitrary interpretations. Even in Western countries with a strong religious presence, the policies of organized religion are separate from those of the government.
E. Institutions of the Rule of Law
Belton also identifies a second definition for the rule of law, namely one based on the institutions or instruments by which the ends of rule of law are achieved. These include:
- the existence of comprehensive laws or a constitution based on popular consent;
- a functioning judicial system;
- established law enforcement agencies with well-trained officers.
Absent any of these features, the rule of law may arguably break down. A constitution without legitimacy will not be respected by the people, and thus its principles cannot be upheld. If there is no constitutional check on the misuse of power, a corrupt judiciary or police force can manipulate the laws to their advantage, incompetent lawyers cannot adequately represent their clients, and so on. The Watergate scandal of the early 1970s—when former president Richard Nixon tried to cover up his administration's involvement in illegal activities aimed to ensure his reelection—illustrates how the institutions of the rule of law act together to protect its principles. The media and public, exercising their right to free speech, uncovered and publicized the Republican administration's illegal activities. Through the U.S. Supreme Court's decision United States v. Nixon (1974), which stated that executive privilege was not absolute and that Nixon was required to release his tapes, the Supreme Court enforced Congress's authority to investigate "high crimes and misdemeanors." The House of Representatives, in turn, impeached the president for breaking the law and violating his oath of office. These actions forced Nixon to resign, which was the first time a president had done so in U.S. history. In this way, a president who sought to act outside of the law to aggrandize political power was prevented from doing so.
Belton notes another factor necessary to achieve the rule of law, namely the will of society to enforce basic principles of equality, fairness, and justice. During the height of the British Empire in the late 19th and early 20th centuries, rule of law principles did not apply in its colonies, where democratic rights were trampled. In the United States, the period of slavery (which was ended countrywide by the 13th Amendment to the Constitution in 1865) is perhaps the most flagrant example within a democratic society of the breakdown of the rule of law. Even after the emancipation of slaves, the adoption of Jim Crow laws throughout the South and U.S. Supreme Court rulings turned the 14th Amendment, which guarantees equal treatment under the law, on its head. An example of a Supreme Court ruling that upheld segregation is Plessy v. Ferguson (1896), which supported the legality of segregation, provided that facilities were separate but equal. Today, it is almost incomprehensible that the American system of democracy supported such terrible contradictions, which condoned the majority's abuse of a minority. Yet it was through the rule of law that African Americans were able to slowly win back their rights. In 1946, the U.S. Supreme Court asserted that segregation during interstate travel was unconstitutional, giving rise to the Freedom Rides, where activists tested this assertion through bus rides throughout the South. The Supreme Court later overturned the legality of "separate but equal" conditions with the decision Brown v. Board of Education (1954), which ruled that racial segregation in public schools was unconstitutional. These two decisions helped to convince American society to end racial segregation and the systematic mistreatment of African Americans through the enactment of sweeping civil rights legislation beginning in the 1960s. The will of society, in this instance, was essential in the establishment of basic rule of law standards.
F. International Rule of Law
Following World War II, the Nuremberg and Tokyo war crimes trials and the adoption of the 1948 United Nations Universal Declaration of Human Rights and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide established international principles of the rule of law, most importantly that no government is above the universal laws of nations, and that the international community may act to prevent and respond to acts of genocide. But no international judicial institutions were established to ensure that states would adhere to these international principles. Consequently, ethnic cleansing and genocide have continued to take place, eliciting either no action or a delayed reaction from members of the international community to try to prevent further killing (most recently in the Balkans, Rwanda, and now the Darfur region of Sudan, among others). However, starting in the mid-1990s, the United Nations set up courts in the former Yugoslavia and in Rwanda to investigate and prosecute war crimes and crimes against humanity with the aim of preventing similar atrocities from occurring elsewhere. In 1988, the International Criminal Court (ICC) was established to prosecute genocide, war crimes, and crimes against humanity, and applies to abuses occurring after July 1, 2002, in situations where national judicial systems do not or cannot assume the case. The innovation of the ICC is that it has the power to prosecute individuals who commit abuses in a signatory state or who are citizens of a signatory state; the United States, however, has not participated in the ICC. More recently, mixed or hybrid tribunals, established through the joint efforts of the United Nations and national governments, have been established in East Timor, Kosovo, and Sierra Leone. Finally, in some countries, such as Iraq, the prosecution of crimes against humanity has been domestic. It is open for debate whether domestic or even mixed criminal tribunals are successful in establishing consistent principles of an international rule of law.
(II) Rule of Law: History
A. The Code of Hammurabi
The earliest written legal code for a government was the Code of Hammurabi for Babylon, dating from 1750 BC. Hammurabi, who needed to unite his disparate realm, decided to establish common rules of conduct, commerce, and devotion to the king under a system overseen by judges. In comparison with contemporary standards, much of the code is severe: many crimes were punishable with death or corporal punishment. Nevertheless, it was remarkable for introducing the ideas that government should be subject to the law; that laws should be based on public rules, not secret or divine ones; and that law should be efficiently and fairly applied by judges, principles that Belton mentions above.
B. The Modern Understanding of Athens
In the area of the rule of law, ancient Athens is best known for its prosecution and execution of the great philosopher Socrates in 399 BC, on charges of treason and corrupting Athens' youth by encouraging philosophical discussion. But this case, usually presented as an example of unjust mob rule, masks the contributions of ancient Athens in the development of rule of law principles. In the Athenian system, magistrates and jurors were drawn by lottery from the Assembly, composed of citizens, since it was believed that judgment should be by one's peers. All citizens had the right to bring both private and public matters before the courts. In commercial law, the principle of binding and enforceable contracts among equal citizens was introduced. This meant that law, not brute force, determined commercial exchanges, helping to make Athens the region's center for trade. Despite its large juries (up to 5,000), a common subject of mockery by critics, the Athenian system appears to have worked efficiently, and citizens safeguarded it jealously. Juries composed of peers and equal access by citizen to courts are just some of the characteristics of Athenian law included in most contemporary justice systems.
C. Roman Law
Most scholars, however, cite the Roman system as the most important tradition influencing Western law. Roman law was less egalitarian in origin, since its first purpose was to protect aristocratic landholders. Furthermore, the spread of Roman law occurred through empire and military dominance. Yet the Roman tradition implanted several basic principles of the rule of law, including the need for public knowledge of civil law and judicial procedures, the evolution of law according to precedent and circumstances, and the idea that natural law (universal rights of man) can provide the basis for positive (man-made) law. The Roman tradition was maintained under the Byzantine Empire and over time was incorporated into much of European law and practice throughout the Holy Roman Empire.
D. The Magna Carta
For many theorists, the most important idea in the rule of law as a concept of governance was the signing of the Magna Carta in England in 1215. Signed by King John, this document limited—for the first time—the power of the king in relation to his subjects by forbidding the raising of taxes without the approval of a partially elected parliament (see also "Constitutional Limits"). It also established other equally important limits:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we (the King) proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land [emphasis added].
The Anglo-Saxon Tradition
Abuses of power by the Stuart monarchy in England during the early 17th century led to the adoption of the Petition of Grievances in 1610, which established the right of citizens to petition government to seek redress for abuses of power. Charles I's attempt to reassert the monarchy's absolute power by raising an army without parliamentary approval led to the adoption of the Petition of Right in 1628, which more firmly grounded in law the principle of no taxation without representation.
The most important aspect of the Anglo-Saxon legal tradition, though, was the adoption of the Habeas Corpus Act in 1679. Charles II, undeterred by the bloody struggle of the English Civil War (1642–51) between Parliamentarians and Loyalists and the brief period of the Commonwealth under Oliver Cromwell and his son (1653–59), quickly abused his powers upon being restored to the monarchy. He imprisoned his opponents without cause and attempted to reestablish Catholicism as the state religion against the clear will of Parliament and the people. Parliament reasserted its rights through the Habeas Corpus Act. The principle of habeas corpus, also known as "the Great Writ," holds that those who have been incarcerated must have their cases heard in court to determine the validity of the arrest or conviction (in Latin, habeas corpus literally means "to have the body"). While the principle had been in existence for over two centuries, the Habeas Corpus Act formalized its use and asserted that the government has neither the right to imprison without cause nor the right to act above the law in relation to its citizens. The law ordered "all sheriffs, gaolers and other officers" in custody of "the King's subjects" to "yield authority" to all writs of the court, meaning that no government official could ignore the law. Today, the principle of habeas corpus provides protection against the abuse of government power through arbitrary or politically motivated imprisonments.
The Glorious Revolution of 1688 replaced the Catholic James II with his daughter, Mary, a Protestant, and her husband (and also her cousin), William of Orange, on the condition that they accepted the English Bill of Rights, adopted in 1689. This bill reinforced the Habeas Corpus Act, the Petition of Right, and the Petition of Grievances, and established other rule of law standards as constitutional foundations, such as the right to trial by jury, the prohibition against cruel and unusual punishment, and limitations on the powers of the monarchy. The Act of Settlement of 1701 later established Parliament's power to determine succession to the monarchy.
E. The Rule of Law as Bulwark Against Government Tyranny
The English Bill of Rights recognized the importance of positive rights, which were being asserted by Enlightenment thinkers. Positive rights refer to a moral obligation that is owed to someone, as opposed to negative rights, which require only the absence of interference. According to many Enlightenment philosophers, these positive rights were natural rights, meaning that all humans were entitled to them and that the state could not violate them. Such rights were an indispensable accompaniment to representative government and were adopted by supporters of both the American and French Revolutions. The American version of the Bill of Rights expanded constitutional protections to include the right to a fair and speedy trial, the right not to incriminate oneself, the right to confront one's accuser in court, and the right to protection against unwarranted search and seizures. In the U.S. Constitution, these standards of rule of law — encompassed within the phrase "due process"— are considered the main bulwark against any threat of tyranny by the government.
F. The Separation of Powers
The question arises, then, as to who will enforce the standards of the rule of law. In modern democracies, the rule of law relies on the presence of a judiciary or court system that can act independently of executive and legislative powers, ruling on the basis of established law and not on the basis of arbitrary or politically motivated considerations. Separation of powers is thus essential to the rule of law. Baron de Montesquieu, whose The Spirit of Laws (1748) was a guide for many of the framers of the U.S. Constitution, argued:
Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.
The independence of the federal judiciary in the United States is established through the "advise and consent" powers of the Senate, such as the need for Senate approval of the president's nominees for federal judges, and the Senate's sole authority to impeach judges from their lifetime appointments, whether due to incompetence or malfeasance. The independence of the judiciary was further strengthened in Marbury v. Madison (1803), decided by Chief Justice John Marshall, which asserted the Supreme Court's power of judicial review, meaning that the Court became the final arbiter of whether laws and the government's actions are constitutional.
G. The Expansion of Rule of Law
The incorporation of the rule of law and the separation of powers in British and U.S. law had a great influence over the next two centuries, first as a result of the expansion of the British Empire, and second as a result of the growing influence of the United States as a world power. Rule of law principles came to symbolize the expansion of rights and liberties around the globe. More significant, natural law arguments in favor of due process, human rights, and self-governance became the instruments for many independence and democracy movements worldwide. Mahatma Gandhi is one of the best-known and most successful of the advocates for combining claims of legal rights with civic resistance against unjust laws. Gandhi succeeded in forcing the British government to abide by its own principles. This strategy has attracted many followers. In the United States, followers of Gandhi, such as Bayard Rustin and Martin Luther King Jr., used the instruments of protest and civic resistance to empower African Americans to act against Jim Crow and legalized discrimination.
H. The Contraction of Rule of Law
As noted above, tyranny stands opposite to the rule of law—it may even reflect its total breakdown. In dictatorships, the institutions of the rule of law frequently become instruments of oppression. Indeed, recognizing the power of law as a foundation for governance, dictatorships develop their own perverted claims to the rule of law. Nazi Germany and other Fascist states, for instance, imposed legal systems based on the supreme power of the leader and the superiority of one race over all others. Communist regimes superimposed the class struggle over "bourgeois" concepts of human rights in all laws, and then established the absolute authority of Communist parties to decide on all aspects of law and life. Many intellectuals were seduced by the idea of a higher form of egalitarianism based on "national" or "socialist" law. In fact, there was no law, only justification for the most brutal actions—mass murder, forced labor, ethnic cleansing, and genocide.
I. Universal Rule of Law
The defeat of fascism and Nazi Germany propelled the establishment of universal standards of human rights and the rule of law through agreements such as the Universal Declaration of Human Rights (1948), the Convention Against Genocide (1948), the Covenant on Civil and Political Rights (1966), and the Convention Against Torture (1984). The collapse of communism and the Soviet Union in 1989–1991, the end of apartheid in South Africa in the early 1990s, and the collapse of Fascist regimes in Latin America in the 1980s and 1990s further reinforced the rule of law as a universal principle not only of justice but also of governance.
J. Islamic Law
There is, however, an Islamic tradition of law that competes with the Western definition of the rule of law based on individual rights. The Islamic system of justice (or Sharia), involves the application of sacred principles as related to the Prophet Muhammad by Allah (the Arabic word for God). In many Muslim countries, Islamic or Sharia courts are complementary to state courts in civil and religious matters.
Such courts are presided over by clerics who interpret the Koran for its application in specific instances of claimed injustice or appeals for mediation. Sometimes, such religious courts follow established procedures and act as a positive mediating influence in society. Sometimes, however, Islamic or Sharia courts act according to procedures based on a particular interpretation of Islam or national custom. This could lead to abuses for political purposes or to the promotion of a sectarian understanding of the Koran (Wahhabism in Saudi Arabia, for example). In such cases, religious courts operate outside of the concepts of the rule of law discussed above that stress equal application of the law, due process, uniformity of expectations, and so on. Thus, in all Muslim countries where democracy has been established (as well as some other predominantly Muslim countries), state courts supersede religious courts.
In a few countries, such as Iran, Afghanistan under the Taliban, and Saudi Arabia, Islamic justice is a tool for imposing a harsh dictatorship based on restrictive interpretations of Islamic law and texts. In recent decades, radical Islamism has also spread to other countries and is used as a tool for seeking power or imposing the will of the majority over the minority (see, for example, the Country Studies of Sudan or Nigeria). More significant, fanatical movements such as al-Qaeda have arisen seeking to achieve a radical vision of Islam in order to establish a universal theocracy. In this vision, the use of violence against innocent Muslims and non-Muslims alike is justified to fulfill radical Islamist goals. Such views are antithetical to any ideas of the rule of law and contrary to the understanding of Islam for most Muslims today.