1.3 The Rule of Law

The term “rule of law” may seem ambiguous, but it is used frequently in legal and governance circles. Rule of lawA system of laws under which the people and the government are bound. is a system of laws under which the people and the government are bound, which allows predictability and restraint of government action. (Note that the phrase “rule of law” is also used to refer to the individual rules of law that define each individual legal issue. For example, the “rule” for fraud is “the use of deception to acquire money or property.” This is the “rule of law” that you would use in an IRAC analysis. This section of the text addresses a larger notion of the “rule of law.” Specifically, this section addresses the rule of law as an entire system of law.)

A rule of law establishes clear rules of behavior, establishes (or captures) precedent, and seriously undermines any defense of ignorance of the law. Moreover, it holds people to the same standards, though in many ancient rules of law, the standards differed depending on the person’s classification. For instance, men often had different rights than women. Enslaved people were a different legal class than those who were free, and indentured servants were often a different classification altogether. When people are held to the same standards, ideally we can see systems of fairness (that is, equal justice under the law).

The Founders of the United States did not create its rule of law system out of thin air. Many rule of law systems existed prior to the founding of the United States. The U.S. rule of law system has many similarities to prior rule of law systems from which our Founders drew their ideas. We can trace elements of our legal genealogy back quite a long way. Issues such as who has the right to govern, the legitimate sources of law, the organization of government, substantive and procedural legal responsibilities, processes for dispute resolution, and consequences for legal transgressions are all common foci for rule of law systems.

What if there was no way to determine these things? Imagine that we did not know who had the legitimate right to govern or that we did not know which sources of law were legitimate. If we did not have a rule of law system that specified and legitimized these and other foundational issues, chaos would rule. In the United States, for example, there would likely be competing claims of authority between different factions of power if the U.S. Constitution and the many state constitutions did not create our systems of government. Likewise, there would be competing sources of law—such as those based on religious texts, or others created by modern human beings—if our constitutions did not legitimize the manner in which laws were to be created. Also, there would be different methods of dispute resolution. Perhaps some people would favor a vigilante system, while others would prefer a procedural system. This type of unpredictability would result in a very unstable society. The American rule of law system provides predictability and stability to our lives.

Rule of law systems establish authority, create expectations for behavior, and establish redress for grievances and penalties for deviance. Governance of conflict and the attainment of peace among the governed are primary goals of rule of law systems. For example, securing peace is a goal within the U.S. rule of law system. The U.S. Constitution’s preamble states, “We the People . . . in Order to . . . insure domestic Tranquility.” We see this same notion in the English Bill of Rights of 1689Contains the basis for many concepts contained in the U.S. Constitution, including the rights of the people to limit the sovereign., though the words used are somewhat different.

According to many rule of law systems, the attainment of peace relies on the establishment of a hierarchical authority structure. This recognition of the right to govern provides legitimacy. For instance, in the Code of HammurabiThe oldest record that we have of a seemingly complete rule of law system. and the Magna CartaContains the basis for many legal principles recognized in the U.S. Constitution, including due process and habeas corpus., these rights are derived from religious authority. In the U.S. Constitution and the English Bill of Rights of 1689, the power is derived from the people.

Note the difference between power and authority. Power is the ability to make someone behave in a predictable manner. Authority draws its strength from legitimacy. Imagine that your friend told you that his mother granted him the right to govern others. Would you believe him? Probably not. Why? Because it is unlikely that you would recognize your friend’s mother as having a legitimate authority to bestow the right to govern on anyone, including your friend. Imagine, instead, the governor of your state appoints your friend to head a state executive agency. You probably recognize the authority of the governor to govern, because you recognize that the people, through representative government, have the authority to elect the governor to do so. Therefore, you would recognize that your friend would have legitimate authority to act within the capacity of the office to which they were appointed.

The rule of law of the federal government in the United States is composed of many different sources of law, including constitutional law, statutory law, rules and regulations, federal common law, and treaties. Additionally, within the United States, several state and local jurisdictions exist, each having its own rule of law systems. Moreover, the U.S. system of governance is one of federalism, which allows different rule of law systems to operate side by side. In the United States, these systems are the federal government and the many state governments.

Organizational structures for government—including who has the right to govern—are set out in rule of law systems. For instance, the Code of Hammurabi identified a ruler: Hammurabi himself. The English Bill of Rights of 1689 required representative bodies. The U.S. Constitution organized the U.S. government by creating the legislative, executive, and judicial branches. These models minimally provide order and, in some cases, provide opportunities for the governed to participate in government, both of which create role expectations of the governed.

Notably, even though our Founding Fathers relied on prior rule of law systems when creating our Constitution, they were unable to resolve all challenges that exist when people live together. Today, for instance, one unresolved challenge is reflected in the tension between personal liberty and responsibility to the state. We have many individual rights and personal liberties, but as some argue, we do not have many responsibilities to the state. We could have a system that requires greater duties—such as a legally imposed duty to vote, to serve in public office or in the military, or to maintain public lands. 

Unresolved challenges highlight the fact that rule of law systems are not perfect systems of governance. Nevertheless, these systems create expectations for conduct, without which governance of conflict could not reasonably exist and peace could not be attained.

The U.S. ConstitutionThe supreme law of the land. It created the structure of the U.S. federal government. is the foundation on which the U.S. federal rule of law system rests. It asserts the supremacy of law. “We the People” is a very important part of the preamble, because it confers power on the people as well as on the states. Notably, unlike the Magna Carta and the English Bill of Rights of 1689, it does not focus on individual rights. Of course, the Bill of Rights does focus on individual rights, but those amendments were passed after the Constitution was written. (That is why they are called amendments to the constitution.) The U.S. Constitution implemented the supremacy of law using structure and processes. The Founders were particularly concerned about giving the government the power to do its job without encouraging tyranny. They built in processes to ensure the supremacy of law. Indeed, ours is “a government of laws and not of men,” John Adams wrote in the Massachusetts Constitution. Thomas Paine noted the same sentiment in Common Sense, when he wrote, “The law is king.”