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The rule of law is defined in the Oxford English Dictionary as: “The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”[2] The phrase “the rule of law” refers to a political situation, not to any specific legal rule.
Use of the phrase can be traced to 16th-century Britain, and in the following century the Scottish theologian Samuel Rutherfordemployed it in arguing against the divine right of kings.[3] John Locke wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon liberty. “The rule of law” was further popularized in the 19th century by British jurist A. V. Dicey. However, the principle, if not the phrase itself, was recognized by ancient thinkers; for example, Aristotle wrote: “It is more proper that law should govern than any one of the citizens”.[4]
The rule of law implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges.[5] In this sense, it stands in contrast to a monarchy or oligarchy where the rulers are held above the law.[citation needed] Lack of the rule of law can be found in both democracies and monarchies, for example, because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it.
History
Although credit for popularizing the expression “the rule of law” in modern times is usually given to A. V. Dicey,[6][7] development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India, and Rome.[8]
Antiquity
In the West, the ancient Greeks initially regarded the best form of government as rule by the best men.[9] Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.[9] Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.”[10] More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.[9] In other words, Aristotle advocated the rule of law:
It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.[4]
The Roman statesman Cicero is often cited as saying, roughly: “We are all servants of the laws in order to be free.”[11] During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.[6]
In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted “rule by law” as opposed to “rule of law”, meaning that they placed the aristocrats and emperor above the law.[12] In contrast, the Huang–Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.[13]
There has recently been an effort to reevaluate the influence of the Bible on Western constitutional law. In the Old Testament, the book of Deuteronomy imposes certain restrictions on the king, regarding such matters as the numbers of wives he might take and of horses he might acquire (for his own use). According to Professor Bernard M. Levinson, “This legislation was so utopian in its own time that it seems never to have been implemented….”[14] The Deuteronomic social vision may have influenced opponents of the divine right of kings, including Bishop John Ponet in sixteenth-century England.[15]
Middle Ages
In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official could claim to be above the law, not even the caliph.[16]
Alfred the Great, Anglo-Saxon king in the 9th century, reformed the law of his kingdom and assembled a law code (the Doom Book) which he grounded on biblical commandments. He held that the same law had to be applied to all persons, whether rich or poor, friends or enemies. This was likely inspired by Leviticus 19:15: “You shall do no iniquity in judgment. You shall not favor the wretched and you shall not defer to the rich. In righteousness you are to judge your fellow.”[17]
In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates back under the rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes.[18][19] This foundation for a constitution was carried into the United States Constitution.
In 1481, during the reign of Ferdinand II of Aragon, the Constitució de l’Observança was approved by the General Court of Catalonia, establishing the submission of royal power (included its officers) to the laws of the Principality of Catalonia.[20]
Early modern period
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The first known use of this English phrase occurred around AD 1500.[21] Another early example of the phrase “rule of law” is found in a petition to James I of England in 1610, from the House of Commons:
Amongst many other points of happiness and freedom which your majesty’s subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government …[22]
In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions (according to his own report) “that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.).”
Among the first modern authors to use the term and give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644).[3] The title, Latin for “the law is king”, subverts the traditional formulation rex lex (“the king is law”).[23]James Harrington wrote in Oceana (1656), drawing principally on Aristotle’s Politics, that among forms of government an “Empire of Laws, and not of Men” was preferable to an “Empire of Men, and not of Laws”.[24]