Rule of Law

The rule of law means that all laws apply equally to all citizens of the country and no one is above the law. Every citizen of the country has a right to approach the courts in case laws are violated. Similarly, every citizen can also be punished for violating laws.
The Preamble of the Constitution itself prescribes the ideas of Justice, Liberty and Equality. These concepts are further enunciated in Part III of the Constitution and are made enforceable. All three branches of the government are subordinate i.e. the Judiciary, Legislature and the Executive are not only subordinate to the Constitution but are bound to act according to the provisions of the Constitution. The doctrine of judicial review is embodied in the Constitution and the subjects can approach the High Court and the Supreme Court for the enforcement of fundamental rights. If the Executive or the government abuses the power vested in it or if the action is mala fide, the same can be quashed by the ordinary courts of law.
The Supreme Court of India in Chief Settlement Commissioner Punjab v. Om Prakash observed that in our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality. The Court added that the doctrine of rule of law rejects the conception of the dual state in which government action is paced in a privileged position of immunity from control by law.

• The rule of law (état de droit, Rechtsstaat) is the implied philosophy of modern positive law
• It refers to the institutionalization of checks and balances within the state, making sure that countervailing powers keep each other in check, thus preventing arbitrary exercise of public power.
• The difference between rule of law and rule by law refers to the difference between, on the one hand, a law that is both an instrument of public policy and an instrument of protection and, on the other hand, a law that is nothing but an instrument to achieve public policy goals.
• Rule of law implies legality, meaning that state powers can only be exercised within the bandwidth of the power attributed for specified and legitimate purposes, taking into account human rights while respecting independent judicial review. Rule by law may refer to legalism, where state powers can be and must be exercised in accordance with the will of the legislator, or to absolutism, where the state has discretionary powers to achieve their objectives as long as these powers have been attributed in accordance with specified procedures.
• In Anglo-American legal philosophy rule of law is often equated with conditions such as accessibility, clarity, generality, non-contradiction, non-retroactive application, feasibility and foreseeability, coupled with the notion of an independent judiciary (Fuller). A difference is often made between a thin and a thick version, depending on whether conditions are more formal or more substantive. In the latter case more attention is given to human rights protection, including social and cultural rights. Others, however, pay keen attention to rights of contestation against the state (Dicey), and to procedural conditions that enable contestation and argumentation as core to the rule of law (Waldron), and to formal characteristics that can constrain what a legitimate legal rule can possibly be (Wintgens).
• In continental European legal theory the Rechtsstaat or Etat de Droit can similarly be seen in a more formal or substantive way, with keen attention to the extent to which the powers of the state are limited, including the question of whether states have positive obligations to ensure respect for human rights in both the public and the private sphere.
• Note that the rule of law, including the protection of human rights depend on positive law.
• In the context of COHUBICOL we take a substantive and procedural perspective on the rule of law, integrating a formal perspective in a way that embraces legality while rejecting both legalism and arbitrary rule, incorporating ‘practical and effective’ protection of human rights and access to an independent court to ensure the contestability of actions or decisions in the public or private sphere that may violate rights or obligations.

Examples of how ‘rule of law’ is used.

The concept of the rule of law is invoked in a manifold set of circumstances which can be distinguished according to a horizontal and vertical dimension. On one hand, the rule of law assumes a central relevance in the context of disputes which involve disturbances of the equilibrium between the powers of different legal institutions. In this sense, it constitutes a violation of the principles enshrined by the concept of rule of law the passing of a piece of legislation which undermines the independence of the judiciary, excludes some administrative powers from the scrutiny of the latter.

The rule of law has both horizontal and vertical dimensions.

On the other hand, in a vertical dimension, the rule of law is often referred to with respect to the legal constraints which inform the relations between legal subjects and the State. In this sense, the act of public officers which affects individuals fall outside of limits set by the rule of law any time that they illegitimately exceed the powers which are established in a foreseeable and contestable manner by positive law; or whereas an individual or a specific group is targeted by measures which violate the principle of legal equality before the law; or when those who are affected by legal power are not given the opportunity to challenge it through an effective legal remedy before a court of law. In this respect, the European Court of Human Rights has underlined that “one can scarcely conceive of the rule of law without there being a possibility of having access to the courts”

The meaning of ‘rule of law’ in terms of MoE, affordance and LPbD.

Mode of Existence: The contrast between the ideal of a “government of laws” and the “government of men” traces its roots to the origins of Western political-legal philosophy. The elaboration of the doctrine of the rule of law, however, represents the response to a set of challenges which have surfaced only with the transition from the Medieval order to the rise of the modern State the development of the modern concept of positive law. While the former was characterized by the coexistence of a plurality of concurring sources of political and legal authority, the latter emerged through a process which led to the gradual centralization of power in the hands of a sovereign and the identification of law with the orders issued by the latter. The doctrine of the rule of law is characterized by a dual assumption: political pessimism and normative optimism. As much as a strong political power is considered an indispensable precondition for the establishment and maintenance of a stable order and, therefore, for granting protection to individuals, it also represents a threat for the latter: the more power tends to be concentrated, the more the risk of an arbitrary use of it. On the other hand, law is presented as the way out of such aporia: the inherent dangers of power can be addressed by channeling it through the forms of law, thereby making it predictable, stable, checkable, and contestable.

Especially from the late Eighteenth century, prompted by the advent of new constitutional experiences and by the establishment of national states, the concept of the rule of law became subject to a lively debate within different legal traditions and inspired the design of specific institutional architectures. On one hand, the various elaborations of the doctrine have been united by the common concern with the risk of arbitrary power. Moreover, a growing process of cross-influences between distinct political-legal frameworks have provided a shared vocabulary which has smoothed out many of the differences distinguishing the Continental and Anglo-American perspectives. On the other hand, the very success achieved by such theory has contributed to make the rule of law an “essentially contested concept”. The attempts to elaborate a taxonomy of the different accounts of the rule of law which characterize the contemporary debate has led to the identification of thinner and thicker version of a formal, substantive and procedural perspectives.

Formal conceptions are distinguished by the relevance accorded to enacted law, and their formal requirements. The rule of law is a form of government constituted by a system of rules of law characterized by features such as clarity, generality, non-contradictoriness, non-retroactivity, stability and foreseeability. Substantive conceptions, on the other hand, identify the content of some rules as essential elements of the rule of law, i.e., the protection of fundamental rights and values, such as liberty, property, equality. Procedural conceptions emphasize the role played by courts of law and legal procedures in the making of law and in the shaping of legal protection.

Ultimately, the co-constitutive relations which intertwine the different accounts of the rule of law rest on a background of normative text-driven practices.

Whereas they often reflect different assumptions with respect to the concepts of legal norms, sources of law and positive law, the different accounts of the rule of law do not necessarily stand in a relation of opposition or mutual exclusion: on the contrary, in the context of COHUBICOL, we emphasize how the intelligibility of each conception depends on the others and how each of them synergistically contributes to picture different facets of the mode of existence of the rule of law. Moreover, we highlight how, ultimately, the co-constitutive relations which intertwine the different accounts of the rule of law rest on a background of normative text-driven practices.

In this perspective, we highlight how the concepts which weave the texture of the rule of law attain normative force through the acts by which the former are invoked and understood as reasons for action. In this light, those which distinguish the different accounts of the Rule of law can be appreciated as distinctions within the language of positive law that are drawn by the performative acts through which the latter is spoken. For instance, the formal requirements of legal rules are put into use and assessed in legal practice through the acts by which a party either claims or denies a distinct legal effect. The acts performed by legal actors within legal proceeding, in turn, are informed and made intelligible by the notions of formal rules, and the implications of the latter are drawn in the light of substantive notions derived from the vocabulary of legal rights.

Affordance : The mode of existence of the rule of law is strictly tied to different affordances which emerge at the interplay between the materiality of a specific information and communication technology (ICT) and the practices performed through such infrastructure by the community of jurists.

The invention and diffusion of the printing press has enabled the process of centralization of power which both accompanied the rise of the modern State and stimulated the debate on the rule of law. On one hand, the possibility to produce and disseminate legal texts enhanced the authority of the sovereign, the reach of its power and the gradual monopolization of the sources of law. At the same time, it has afforded and made increasingly necessary the development of a substratum of text-driven normative practices by the community of jurists.

The practices developed by jurists on the basis of texts both depend on and substantiate a shared understanding of “what counts as” positive law and what it is for the latter to rule. A point of convergence between different accounts of the rule of law is represented by the acknowledgment of the circumstance that the possibility for the law to rule depends on the prevalence, within legal institutions, of a certain theatrical and practical stance towards the value of legality. In this sense, it is interesting to notice that Dicey interchanged the expression “rule of law” with “predominance of legal spirit”. This emphasizes the constitutive role played by the shared pre-judices, techniques and vocabularies which inform the self-perception of the role that jurists are called to play, and which orient their relation with the law as expressed into legal texts. The importance of such preconditions is made evident by all those circumstances in which, despite the apparent subsistence of formal, substantive and procedural requirements, the rule of law lacks effectiveness: “courts are just buildings, judges are just bureaucrats, and constitutions are just pieces of paper”.

It is often difficult to account for the preconditions which afford the rule of law through the vocabulary offered by formal legal perspectives. The ultimate grounds on which the rules of law which sustain the rule of law rest, indeed, can hardly be accounted for in terms of necessary and sufficient conditions and expressed into formal rules. This circumstance, however, does not make the affordances of the rule of law something elusive, mysterious, or arbitrary, nor does it necessitate to search for further grounds outside the realm of law: on the contrary, it emphasizes the relevance of the interlocking practices through which jurists read and “let speak” texts. Such text-driven interactions afford, as it were, in practice, to ascribe meaning to the formally expressed rules, instituting a common frame of reference which makes their normative force binding, intelligible, predictable and contestable.

The circumstance that it is “the law” that which “rules”, in turn, affords a form of government in which power and its effects take the shape of legal power and legal effect, sharing the affordances of the medium through which the former is exercised, i.e., the language of positive law. For text-driven practices to afford the law to effectively rule, they must attain a certain degree of uniformity, constancy over time and prevalence within a certain juristic community. The very possibility to meaningfully contest an act of exercise of power, indeed, depends on the mastery of techniques of argumentation which presuppose that some shared assumptions are taken “as a matter of course”.

Legal Protection by Design : Since its origins, the aspiration of the doctrine of the rule of law has been that of designing a set of legal constraints aimed at affording protection from arbitrary power.

On one hand, efforts have been directed towards the implementation of a form of government in which power — in the words of Montesquieu — acts as “a check to power”. In this respect, the doctrine of the rule of law demands that sovereignty is internally differentiated into a plurality of powers and the subjection of the latter to relations of mutual interdependence. In this way, the production of legal effects depends on the correct performance of legal procedures which presuppose the concerted action of different bodies, thereby minimizing the risk that the exercise of power takes the form of a unilateral determination.

For power to produce legal effects, it must satisfy the formal, substantial and procedural requirements of legality set forth by the language of positive law.

On the other hand, the form of law offers a distinct kind of protection by subjecting power to a seamless set of constraints which channel its expression ex ante and ex post: for power to produce legal effects, it must take into consideration and satisfy the formal, substantial and procedural requirements of legality set forth by the language of positive law. Moreover, as they constitute the conditions for power to count as legal power, such requirements simultaneously represent grounds for contesting its exercise.

While the first elaborations of the doctrine of the rule of law were concerned almost exclusively with the risk of arbitrary exercise of power by the administration, a series of doctrinal positions, as well as constitutional architectures aimed at subjecting to legal constraints also the power of the legislator. In this respect, the reluctance to affect the sovereignty of the legislator, which was subject of an almost mythologic reverence, was overcome especially after the advent of totalitarian regimes. After the Second World War, a new wave of constitutionalism, together with the institution of transnational legal orders, prompted the expansion of the concept of the rule of law in a both theoretical and practical perspective. Through the establishment of fundamental human rights both in national constitutions and transnational charters, and, most importantly, through the provision of legal mechanisms directed at ensuring their protection, all state powers have finally become subject to legal constraints.

The constitutionalization of fundamental rights has, as it were, enabled a “subjectification” of the rule of law, i.e., its reorientation towards the perspective of the legal subjects which find in positive law a source of empowerment and protection. The founding pillars of the doctrine of the rule of law, i.e., the principle of legality and equality, the formal requirements of law, the differentiation of powers, etc., have been translated into the language of legal rights, becoming grounds on the basis of which legal subjects can bring claims before impartial and accessible courts. In this perspective, as it is emphasized by the Latin maxim, “ubi ius ibi remedium”, the rule of law demands the establishment of a co-constitutive relation between positive law and legal remedies capable to effectively afford protection.

The effectiveness of remedies, in turn, implies the obstacles at an institutional level which risk jeopardizing legal protection, for instance an interference of the government into the activities and organization of judiciary, the lack of instruments for ensuring that the former complies with the orders of the latter. Legal protection is dependent on the effective possibility to establish a productive dialogue with legal institutions through the language of positive law, a dialogue in which it is possible to meaningfully articulate one’s claim for protection or challenge the exercise of legal power.

For such a dialogue to attain, it must not only be possible to address the subject who will make a binding legal decision, i.e., who will finally attribute legal meaning and determine its legal effects: it is also necessary that the decision-maker is capable of hearing and understanding the addressees.

This, once again, points to the central role played by the language of positive law and the text-driven interactions performed by the community of jurists through which it is constituted what counts as an effective remedy, a legitimate exercise of legal power or an arbitrary act.

Exceptions to Rule of Law

Some exceptions to the concept of the rule of law are discussed below:

• Equality of Law’ does not mean that the powers of private citizens are the same as the powers of public officials. e.g. a police officer has the power to arrest which the private citizen does not have.
• The rule of law does not prevent certain classes of persons from being subject to special rules, for example, the armed forces are governed by military laws.
• Ministers and other executive bodies are given wide discretionary powers by the statute.
• Certain members of the society are governed by special rules in their professions like lawyers, doctors and nurses.
• Positive law is the entirety of legal norms that are in force in a specified jurisdiction, derived from the sources of law.
• As explained under legal norms, this includes both primary rules (regulative, i.e. legal norms that directly regulate) and secondary rules (constitutive, i.e. legal norms that define how primary rules can be made).
• Being in force refers to the binding character of positive law, the state’s actual power to enforce the law and a decision by a legislator, public administration or court whereby they enact legal norms in the sense of issuing, interpreting and/or applying them. All three points relate to the nature of legal effect as opposed to causal effect.
• Legal certainty depends on the ‘positivity’ of the law.
• Positive law is informed by the moral principles that constitute its implied philosophy and simultaneously informs the moral practices of those subject to its normativity.
• Positive law differs from morality in that it does not depend on the moral inclinations of an individual decision-maker, and that it is in principle enforceable against those under its jurisdiction.
• Positive law differs from politics and policy in that it does not determine the purposes of a polity but determines what legal effect is attributed based on the fulfilment of what legal conditions. The rule of law implies that political decision-making depends on the attribution of a legal power to do so, meaning that the legal effect of primary legal norms depends on the legal effect of secondary legal norms.
• Positive law assumes the existence of a sovereign state and simultaneously constitutes and regulates that same sovereign state.
• The rule of law as well as the protection of human rights depend on positive law.
• Positive law is often opposed to ‘natural law’, which may refer to divine law (medieval period) or the law of reason (enlightenment period), both of which claim universal application and an objective truth-value; positive law is human-made (it is ‘posited’), depending on the social contract that defines a particular jurisdiction.
• Though some authors restrict the meaning of ‘positive law’ to legislation, we use the concept to refer to all legal norms, whether enacted by a legislature or a court, whether written or unwritten, as long as they derive from the sources of law.
• Positive law should not be confused with ‘legal positivism’, which refers to a specific conception about the nature of law, its making and its validity. Recognizing the importance of positive law does not imply ‘legal positivism’.

Examples of how ‘positive law’ is used

Not taking one’s hat off in certain circumstances might be sanctioned by public disapproval, signalling the violation of a moral obligation. Such a breach of diffused expectations, however, does not amount to a violation of positive law. By contrast, an action which might be indifferent or tolerable from a moral point of view, i.e. not to stop at red lights in a desert, constitutes a violation of positive law where that is provided by a legal norm expressed into the sources of law and the effects produced by such a violation might be enforced by public authorities invested of the power to exercise public force.

It may be contrary to positive law to enter a vehicle into a park. A data-driven machine trained on thousands of pictures of vehicles might accurately classify new pictures as either representing vehicles or non-vehicles. Whatever the performance that the machine achieves in such task, however, the machine output does not automatically produce performative legal effects, in that the machine processing does not amount to positive law. To count as a legal decision, the outcome output by the machine must satisfy the set of normative requirements provided for by positive law. If the decision is disputed, the fulfilment of such requirements must be proven through the articulation of a justification which, in turn, complies with the standards of legal reasoning which distinguish legal practice.

The meaning of ‘positive law’ in terms of MoE, affordance and LPbD

Mode of Existence : An approach informed by the lenses provided by the concept of mode of existence affords to highlight how positive law comes to exist through the normative practices performed by jurists on the basis of legal text. This perspective brings to fore what it means for law to be “positive” by showing how law can achieve a distinctive kind of objectivity which is both depended on and itself productive of a specific materiality but, at the same time, cannot be accounted for through a reifying vocabulary: such objectivity is indeed the objectivity of meaning which is reached into language.

The norms expressed in positive law are not causes of behavior, but reasons which justify certain action.

In this respect, the mode of existence of positive law differs from that of the laws which can be formalized in order to provide a causal or statistical explanation of either natural phenomena or human behavior. The concept of positive law, indeed, refers to the set of legal norms which result from the sources of law. The intelligibility of such concepts depends on a set of institutional linguistic practices which constitute the locus within which normative judgments concerning the correct or incorrect application of norms can be meaningfully performed. Such normative assessment involves a vocabulary of explanation which differs from that employed with respect to phenomena governed by positive laws: the norms expressed in positive law are not causes of behavior, but reasons which justify certain action.

At the same time, as emphasized especially by positivist jurisprudence, positive law is distinguished from other normative phenomena as, for instance, politics, religion, moral, or games. In this sense, the “positive” character of law has been explained with reference to the artificial, men-made character of law and by highlighting the specific features which distinguishing law as a system of norms. On one hand, in a normativity perspective, legal positivism has put the emphasis on the systematic hierarchical relations between legal norms and specific procedures of enactment and enforcement, determines the legal validity of a law-making act. On the other hand, in a voluntarist perspective, the ultimate source of validity has been traced to the will of the sovereign which posits the legal order.

Other approaches offer an understanding of the “positive character” of law which either contrasts with or rearticulates the essential elements of legal positivism. Some have openly adopted an anti-positivist stance, emphasizing the inherent limitations which distinguish enacted law or contrasting it with the positive character of legal orders which grow spontaneously from interaction. Other perspectives, on the other hand, afford to dissolve the apparent irreconcilability between such views by addressing the way in which the positive character of law is constituted in the context of legal practice. By configuring the relations between law-making power and positive law as mutually constitutive, such approaches shift the emphasis from the question of “who posits positive law” to the practices within which the reference to something as positive law is licensed, accepted (or contested) and produces its effects.

The reception of a legal text is a continuous process, performed by a plurality of actors in different circumstances.

Such approach to positivity enlarges the perspective from the acts through which texts are enacted to the con-texts in which they are received and appropriated as positive law. In this way, the concept of positive law is situated into a wider horizon: the reception of a text, indeed, is a continuous process which is performed by a plurality of actors in different circumstances. On the other hand, the understanding of “positivity” which emerges from such perspective does not deny the responsibility that comes with the human authorship of positive law, nor does it diminish the importance of enacted law: on the contrary, by framing the positive character of law in the light of practices performed on the basis of legal texts, it actually extends such responsibility and acknowledges how, through the acts of writing, reading, speaking law, the community of jurists plays a constitutive role in the “positivization” of law. Questions such as what constitutes a valid source of law, the correct performance of a procedure of enactment, or an authoritative precedent, or what is the scope of the binding force of a legal norm, etc., are addressed by looking at the standards of reasoning and argumentation which jurists set and enforce within the linguistic interactions informed by the common frame of reference afforded by the language of positive law.

Affordance : A practice-based account of the concept of positive law emphasizes the distinctive affordances which enable the normative force of law. The concept of affordance is in this respect particularly apt to give an account of the shared understanding and agreement in judgments with respect to “what counts as positive law” which jurists achieve through their text-driven interactions. Crucially, such a shared understanding is not limited to the theoretical knowledge of the relevant concepts informing positive law, but it involves the reciprocal recognition of what amounts to their concrete application. Due to its linguistic character, the reaching of such agreement enables the institution of a common framework of reference which affords law to be stable without standing still.

The language of positive law provides legal subjects with grounds for anticipating the consequences of their actions, enabling them to develop and rely on mutual expectations. Such form of certainty and predictability is qualified by the very nature of that which is considered certain or predictable, i.e., not a phenomenon that occurs according to statistical or causal laws, but an act of application of a legal norm: the grounds on the basis of which the consistency and predictability of normative action are assessed are represented by the reasons which justify such action. Did the court decide the present case in the same way it did before? Will this reading of a legal text be considered correct? Is this act correctly qualified under such norm? Answering these questions implies the capacity to detect a form of meaningful regularity which can only be grasped from a normative standpoint, that is, by making reference to the categories and vocabulary which inform positive law. As the meaning of acts, facts and norms is entrenched by their use, so their regularity depends on the constancy and sharedness of a certain understanding within the community of jurists.

The linguistic nature of the interactions between jurists affords the possibility of coming to an understanding.

Especially the classic common law tradition has stressed how the stability and binding force of law is enabled by jurists’ capacity to institute a common language by mastering the “artificial reason” — or better, reasoning — “and judgment of law”. Such abilities result from and manifest jurists’ partaking to a joint enterprise distinguished by the use of common techniques which are learnt through a training requiring “long study and experience”. The latter is gained through the immersion into the body of positive law: the fluency in the language of law is afforded by the critical appropriation of the schemes of interpretation guiding the past controversies and the capacity to reformulate and adapt them to the needs of the present.

As the reaching of a stable understanding of what counts as positive law affords the entrenchment of its normative force, the linguistic nature of the interactions between jurists also affords the possibility of coming to an understanding, i.e., to perform a continuous stabilization and re-articulation of legal meaning: through the exchange of arguments, the reading of the latter in the light of new contexts, the reinstatement and discussion of the similarities and dissimilarities between cases, etc., the meaning of human action and legal norms can be defined and redefined through an ever more tailored vocabulary.

Legal Protection by Design : As discussed with respect to the concept of the rule of law, the fact that positive law constitutes the medium through which government is exercised provides a safeguard against unruly and potentially arbitrary power.

In order to produce legal effects, power has to be expressed into the language of positive law and satisfy the conditions of veridiction, assertibility and felicity which govern the performance of legal speech acts. The need to justify one’s action in terms of positive law, i.e., the need to identify a valid source of power, the relations between different competences and authorities, the import of formal requirements, etc., implies the anticipation of the shared understanding which consolidates through the text-driven practices performed by jurists. Through the interplay between the anticipation of meaning and the application of legal norms, the shared repository of legal understanding informs ex ante and recursively that which can be said through the language of positive law.

Positive law provides the vocabulary necessary for envisioning the very possibility of legal protection.

As it restraints power, positive law simultaneously affords legal subjects different forms of protection. On one hand, as emphasized especially by the liberal tradition and by formal accounts of the rule of law, it safeguards a form of negative liberty, that is, it affords protection from the illegitimate interference of the State in the spheres of action which are not regulated by law and, simultaneously, it makes the exercise of legal power predictable. On the other hand, positive law lays the foundations for the enjoyment of a positive form of legal protection. Indeed, it enables legal subjects to demand that the State complies with those positive obligations whose fulfilment is essential for ensuring a comprehensive protection of subjective rights.

The language of positive law offers legal subjects the tools and techniques to claim protection either by contesting an unfavourable application of legal norms or by advancing a favourable reading of law. But, before all, positive law provides the very vocabulary which is necessary to even envision the possibility of being entitled to legal protection. Due to its linguistic nature, positive law enables a dynamic form of protection: through the role of mediation played by the community of jurists, the reading and interpretation of positive law affords to give recognition to the needs emerging in social interaction and to fashion them into a form capable of producing legal effects. Positive law both informs and is informed by the array of human interactions it aims at governing: the constitutive relation it entertains with “human affairs and conversation” affords to constantly enrich that which can be said and understood through the language of positive law.