Sociology Index

RULE OF LAW

Rule of law is the doctrine that arbitrary exercise of power is controlled by subordinating power to well-defined and impartial principles of law. One of the cornerstones of democratic society, rule of law means that everyone is subject to the law. It is not just the rule that everyone is covered by the Criminal Code and must be charged and convicted if appropriate. Rule of law also means that no one in the society, the Prime Minister, cabinet, senior civil servants, judges or police has power except as it is derived from law. In rule of law, authority can only come from law, namely the Constitution, a statute, legal regulations, Common Law, municipal by-law. There is a rule of law rather than rule by individuals.

The Rule of Law and Its Limits - Andrei Marmor, USC Gould School of Law
Abstract: The challenge for any theory about the rule of law is threefold: to explain what the rule of law is, why is it good, and to what extent. This article proposes a comprehensive theory of the rule of law, articulating the conditions that the law has to meet in order to be able to fulfill its pivotal functions in guiding human conduct. The article advances two main theses about these conditions of the rule of law: first, that although the virtues of the rule of law are essentially functional, they are also moral political values, enhancing a range of goods that we value in addition to their functional merit.

Secondly, the article comprises detailed arguments purporting to show how legalism can be excessive and that upholding the rule of law virtues is never costless, morally, politically, and otherwise. Within contemporary jurisprudence, this article takes an intermediary position between Lon Fuller's account of the rule of law as exhibiting the "inner morality of law," and Joseph Raz's functional account. The article concludes with an argument showing that the jurisprudential debates about the rule of law have no bearing on the debates between legal positivism and its critics.

Veto Players and the Rule of Law in Emerging Democracies
Josephine T. Andrews, Gabriella R. Montinola, University of California, Davis
Comparative Political Studies, Vol. 37, No. 1, 55-87 (2004).
The authors investigate the relationship between constitutional design and the rule of law in emerging democracies. The authors provide a formal logic to the Madisonian assertion that increasing the number of veto players strengthens the rule of law. The model shows that as the number of veto players in government increases, their ability to collude on accepting bribes decreases; therefore, their incentive to vote on legislation strengthening the rule of law increases. The authors classify governments according to the number of veto players, following the logic proposed by Tsebelis. The authors test hypotheses derived from their model on 35 emerging democracies using veto-player data that they gathered for the analyses. The authors find that systems with multiple veto players have higher levels of the rule of law. Furthermore, independent of the number of veto players, presidential systems have lower levels of the rule of law than do parliamentary systems.