The Rule of Law Concept
There is no single definition of the rule of law. Scholars and judges describe the rule of law in a variety of ways.
According to the International Commission of Jurists, the rule of law is “a dynamic concept for the expansion and fulfilment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized.” [1]
The United Nations notes that the rule of law “refers to 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.” [2]
In his book The Rule of Law, Lord Bingham states at the core of the rule of law is the notion ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’. He further outlines eight principles of the rule of law:
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The law should be accessible, clear and predictable.
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Questions of legal right and liability should be determined according to law, not by the exercise of discretion
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The law should apply equally to all, except when objective difference requires differentiation.
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Public officials should exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, reasonably and without exceeding the limits of such powers.
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The law must protect fundamental rights.
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The state must provide a way of resolving civil disputes at reasonable cost.
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The adjudicative procedures provided by the state should be fair.
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The state must comply with its obligations in international law as in national law.
Hong Kong scholars have also formulated their own definitions for the rule of law. For example, Professor Albert Chen described the doctrine as having ten layers, and Mr. Benny Tai Yiu Ting divides the rule of law into four levels.
Although there are different ways to understand and describe the rule of law, there is consensus on its core components. Generally speaking:
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The rule of law refers to a legal system that is governed by law.
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There are rules and means to avoid and minimize the arbitrary use of power.
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The law must be enacted through a proper and formal process.
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The law should protect fundamental rights and be guided by certain values of public good.
Read more about different facets of the rule of law below:
[1] International Congress of Jurists, and Norman S. Marsh. 1959. The rule of law in a free society: a report on the International Congress of Jurists, New Delhi, India, January 5-10, 1959. Geneva: International Commission of Jurists. Available at https://www.icj.org/wp-content/uploads/1959/01/Rule-of-law-in-a-free-society-conference-report-1959-eng.pdf.
[2] United Nations. Report of the Secretary-General on Delivering Justice: Programme of Action to Strengthen the Rule of Law at the National and International Levels. March 16 2012 A/66/749. Available at http://www.un.org/ruleoflaw/files/SGreport%20eng%20A_66_749.pdf.