Rule of law in general

The rule of law is the "supremacy of regular

power as opposed to arbitrary power.
The phrase can be traced back to the 17th
century, and it was popularized in the 19th
century by British jurist A. V. Dicey. The concept
was familiar to ancient philosophers such
as Aristotle, who wrote "Law should govern".[Rule
of law implies that every citizen is subject to the
law. It stands in contrast to the idea that the ruler
is above the law
 Meaning

– Set of rules either written or based on precedence

that is applicable to all constituents of a society.
– Rules of game don’t change—nobody is above the
law.
– A set of laws/procedures/rules that governs society
and are consistently enforced, equally to all to all
citizens regardless of status.
– All people are treated equally under the country’s
legal procedures.
 United Nations Definition of Rule of
Law:
• A principle of governance in which all persons,
institutions and entities, public and private, including
the State itself, are accountable to laws that are
publicly promulgated, equally enforced and
independently adjudicated, and which are consistent
with international human rights norms and standards.
It requires, as well, measures to ensure adherence to
the principles of supremacy of law, equality before the
law, accountability to the law, fairness in the
application of the law, separation of powers,
participation in decision making, legal certainty,
avoidance of arbitrariness and procedural and legal
transparency.
 World Justice Project: Rule of Law
Index
• Four Principles:
▫ The government and its officials are accountable under law.
▫ The laws are clear, publicized, stable and fair, and protect
fundamental rights, including the security of persons and
property.
▫ The process by which the laws are enacted, administered
and enforced is accessible, fair, and efficient.
▫ Access to justice is provided by competent, independent,
and ethical adjudicators, attorneys or representative, and
judicial officers who are of sufficient number, have
adequate resources, and reflect the makeup of the
communities they serve.
▫ http://www.worldjusticeproject.org/rule-of-law-index/
 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
 Roman statesman Cicero,
We are all servants of the laws in order that
we may be free.
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
 China
• 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.
• 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
 India
• In India (Bharat), the rule of law worked on the basis of
moral responsibility of the citizens as well as the rulers
of the kingdom. Two main systems dictated the laws in
the ancient Indian society, Dharma (every person must
fulfill his/her responsibility to the best of their abilities)
and Manusmritis, written by various scholars that
outlined laws such as Inheritance laws, Marriage laws,
Laws regarding criminal activities etc. Manusmritis
were also edited and new laws were added to
accommodate changing situations, just like modern
times.
• the ruler was under the law. 
 UK
• Magna Carta
• Dicey ‘s Concept
 Modern Rule of law
• An 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
 Bracton
• Bracton said, quod Rex non debed 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 give the
principle theoretical foundations was Samuel
Rutherford in Lex, Rex (1644). The title is Latin for
"the law is king" and reverses the traditional rex
lex ("the king is the law"). John Locke also
discussed this issue in his Second Treatise of
Government (1690). The principle was also
discussed by Montesquieu in The Spirit of the
Laws (1748). 
• The phrase "rule of law" appears in Samuel
Johnson's Dictionary (1755)
 USA
•  Thomas Paine wrote in his pamphlet Common
Sense 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.”
•  In 1780, John Adams enshrined this principle
in the Massachusetts Constitution by seeking
to establish "a government of laws and not of
men.
 Modern Theorists
• Among modern legal theorists, most views on this
subject fall into three general categories:
the formal (or "thin") approach, the substantive (or
"thick") approach, and the functional approach.
• Formalist definitions of the rule of law do not make a
judgment about the "justness" of law itself, but define
specific procedural attributes that a legal framework
must have in order to be in compliance with the rule of
law.
• Substantive conceptions of the rule of law go beyond
this and include certain substantive rights that are said
to be based on, or derived from, the rule of law
 Cont…
• The functional interpretation of the term "rule of law",
consistent with the traditional English meaning, contrasts
the "rule of law" with the "rule of man."[26] According to the
functional view, a society in which government officers
have a great deal of discretion has a low degree of "rule of
law", whereas a society in which government officers have
little discretion has a high degree of "rule of law".
• The ancient concept of rule of law can be distinguished
from rule by law, according to political science professor Li
Shuguang: "The difference....is that, under the rule of law,
the law is preeminent and can serve as a check against the
abuse of power. Under rule by law, the law is a mere tool
for a government, that suppresses in a legalistic fashion.
•  A government based on the rule of law can be
called a "nomocracy", from
the Greek nomos (law) and kratos (power or
rule
Tamanaha, Brian. “The Rule of Law for
Everyone
• Current Legal Problems, volume 55, via SSRN (2002):
• Most legal theorists believe that the rule of law has
purely formal characteristics, meaning that the law
must be publicly declared, with prospective
application, and possess the characteristics of
generality, equality, and certainty, but there are no
requirements with regard to the content of the law.
Others, including a few legal theorists, believe that the
rule of law necessarily entails protection of individual
rights.
 Assessment of Nepal
• Constitutional Provision
• Legal Provision
• Institutional set up
 Assessment
assessment identified three principal challenges for rule of law
development:
- The foremost challenge is a widespread impunity that is impeding
law enforcement, fueling a breakdown in law and order, and
enabling crime and violence to proliferate.
- A second major challenge is limited access to justice, especially for
vulnerable and marginalized populations, and the historic exclusion
of many from representation in justice institutions and the legal
profession on grounds of gender, ethnicity, and caste.
- The third challenge is the need for independence and professionalism
to enable the justice system to serve as a check on abuse and a
protector of rights and constitutional norms.
 Assessment
Nepal’s courts are arranged in three tiers. There are 75 first instance courts (district courts), 16
intermediate courts (courts of appeal), and an apex court (Supreme Court). There are also a few
specialized tribunals, and certain administrative officials have quasi-judicial powers. The overall
workload of the courts is not heavy, although there are major delay problems.
The likely explanations for delay appear to be procedural and managerial, including
inefficient allocation of judges and staff. While some district courts handle very few cases,
the broad jurisdiction of the Supreme Court creates a relatively high rate of congestion. One
significant factor in the workload of the courts is the low volume of criminal prosecutions by
the Office of the Attorney General. The effectiveness of the courts is impaired by widespread
disregard for judicial decisions and orders, many of which are not enforced.
 Suggestions
• Ending impunity and achieving the effective
application of the law
• Expanding inclusive access to justice and equal
protection of the law
• Strengthening independence and
professionalism