The rule of law
is undoubtedly one of the most powerful expressions
and an often repeated political ideal in contemporary global discourse. A
government that abides by the rule of law is seen as good and worthy of respect
in the modern world. The concept of rule of law is based on the idea that
governance of a state is carried out not by the rulers or nominated
representatives of people but by the law.
The Rule of law is the mechanism, process, institution, practice, or norm that
supports the equality of all citizens before the law, secures a non arbitrary
form of government, and more generally prevents the arbitrary use of
power. The principle ideas about rule of law have been central to political
and legal thought since the ancient times. Aristotle distinguished the rule
from that of any individual.
In the 18th century the French
political philosopher Montesquieu elaborated a doctrine of the rule of law that
contrasted the legitimate authority of monarchs with the caprice of despots.
The concept of rule of law has been greatly influenced by the Western Liberal
thought. Dicey had also explained his ideas about rule of law and has given
certain basic principles on this concept which have been widely accepted by the
states throughout the world. Considering the present scenario, almost all the
states follow the idea of rule of law while implementing their domestic legal
In many countries like India, the principles of rule of law are brought into
effect through the provisions embedded in their Constitution. Because of the
effect of the world transforming into a global village
the rule of law
has outgrown the limits of national law and the national borders. In the recent
decades, the rule of law has become an important component of the international
legal order. The internationalization of the rule of law has gained a wide
spectrum of applications ranging from its promotion through a variety of
international organizations to attempts of implementing it as a legal ideology
for international law as such.
According to United Nations (UN) system, the rule of law is fundamental to
international peace and security and political stability; to achieve economic
and social progress and development and to protect people’s rights and
fundamental freedoms. The rule of law is 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.
In this article, we will discuss about the international legal scenario of the
rule of law along with a study of views of various jurists on the concept of
rule of law. It will also include the study about the expansion of rule of law
from domestic to international legal order and the challenges against the
application of rule of law principles at a global level.
History of Rule of Law
The term Rule of Law
is derived from the French phrase La Principe de
(the principle of legality) which refers to a government based on
principles of law and not of men. The Rule of Law has its origins in ancient
Greece. The argument about rule of law starts in the philosophy of Aristotle, a
It proceeds in the early modern period with the thoughts of John Locke and
Montesquieu during the European enlightenment. British jurist, A.V. Dicey
further popularized the idea and many of his principles accepted till now. The
concept of rule of law has also been discussed in the writings of many American
philosophers such as Lon Fuller, Ronald Dworkin and John Rawls. A brief overview
about the ideas of these jurists about rule of law is discussed as under.
In his book Politics, Aristotle has discussed politics as a practical science
and has described the role that politics and the political community must play
in bringing about the virtuous life in the citizenry. Though he did not approach
rule of law directly, he formulated a question whether it was better to be ruled
by the best man or the best laws. According to him the governance was dependent
not only upon the type of law being considered but also on the type of regime
that enacted and administered that law. Aristotle said that for preventing the
tyranny of absolute monarchy it is preferable for the law to rule rather than
any one of its citizens.
Aristotle did maintain that law as such had certain advantages as a mode of
governance. Laws are laid down in general terms, well in advance of the
particular cases to which they may be applied. Moreover, laws are made after
long consideration, whereas decisions in the courts are given at short notice,
which makes it hard for those who try the case to satisfy the claims of justice.
(Rhetoric 1354b) He follows the notion of subjection of rulers to law- the idea
of a ‘government of laws and not of men’. The distinction between
legislative, executive, and judicial functions is also found in Aristotle’s
work. The idea of rule of law can be thus found in Aristotle’s work, though not
in very expressions.
John Locke in his second from Two Treatises of Government argues for the rule of
law as just and rightful politics, not only in the fundamental legislation that
is the constitution but also in regular governance by the legislature. Locke
emphasized the importance of governance through established standing Laws,
promulgated and known to the People
He wrote that freedom in society means being subject only to laws made by a
legislature that apply to everyone, with a person being otherwise free from both
governmental and private restrictions upon liberty. He also gave substantive
principles with respect to private property and also insisted that positive law
is subject to substantial constraint which further added controversies to
administration on these lines with regard to ownership of property. Locke also
advocated separation of powers by government and believed that revolution is not
only a right but an obligation in certain circumstances. These ideas would come
to have profound influence on the Declaration of Independence and the
constitution of USA.
The principle of rule of law has also been discussed by Montesquieu in
his Spirit of Laws. His work in connection with rule of law is best known for
his emphasis on separation of powers in a state. Montesquieu shares with
Aristotle the common notion for distribution of powers but unlike Aristotle’s
political approach Montesquieu has considered it under the values of legalism.
Whatever types of power are exercised by a state, each type must be distributed
or its exercise will be liable to corruption. By ‘corruption’ he understands a
lack not just of honesty but of integrity and, indeed, of strength. According to
him, the distribution of power is matter of principle, but how such power is
distributed is a matter of circumstances. He also explained his ideas about
political liberty in his Notes on England and Spirit of Laws.
But he means a liberty in which the aristocracy and the bourgeoisie will be free
from oppression by a despotic monarch, free from conflict with each other and
free from overthrow by the rabble.
The firm base of Rule of Law owes its exposition to Albert Venn Dicey. Dicey
proposed that key to rule of law is legal equality. In his book The Law of
Constitution, Dicey has written that no man that no man is punishable or can be
lawfully made to suffer in body or goods except for distinct breach of law. He
gave three principles for rule of law i.e., absolute supremacy of law, equality
before law and predominance of legal spirit.
Under Dicey’s rule of law is impartial and no distinction is made between rich
and poor or majority and minority, justice is equally served to one and all. It
rejects all kinds of arbitrary exercise of powers at the hands of government or
its officials. The legal spirit is seen in customs, conventions and judicial
Although rule of law by Dicey has been quite popular across the globe it has
faced certain criticisms about its applicability to public officials who are
governed by special regulatory laws and often enjoy certain privileges. But
still many sovereign states have incorporated the concept of rule of law into
their constitution on the basis of principles of rule of law given by Dicey.
Lon Fuller believed that government in accordance with the forms and procedures
of law had a distinctive value that could help close the gap of separation
between positive law, on the one hand, and morality and justice on the
other. Rule of Laws are Procedural Standards. Fuller did not aim to produce a
morality of law on the basis of a general moral theory in keeping with the
ancient natural law traditions. He explained the moral content in the idea of
the rule of law
means governance by rules and judicial institutions as
opposed to other sorts of political decision-making or ordering.
The authority of law is derived from a moral understanding between rules and
that those are ruled. Citizens give moral respect to the Constitution which is
legitimate and it is necessarily as a right and good thing. In his 1964 book The
Morality of Law, Fuller formulated principles for what he denoted as the
inner morality of law
Principles requiring that laws be general, public, prospective, coherent,
clear, stable, and practicable—and argued that these principles were
indispensable to law-making.
Fuller’s work on the Rule of Law had one last nuance. He understood that law
constituted a distinct kind of governance that might not be relevant for every
task of the state. He contrasted it not just with a Nazi-style reign of terror,
but with the sort of managerial administration that might be necessary for an
allocated decision-making in a mixed economy like the United States in the
Rule of Law in Modern Sense
Rule of law is a dynamic concept and cannot be expected to be governed by same
fixed principles throughout the changing times. The principles given by Dicey
governing his theory of rule of law cannot be applied in their totality to the
prevailing circumstances of the present world. The modern concept of the rule of
law is fairly wide and therefore sets up an ideal for any government to
achieve. The concept of Rule of Law was discussed at the International
Commission of Jurists which met in 1959 at New Delhi and is also known as Delhi
Declaration, 1959. The theme was Rule of Law in Free Society.
According to this formulation:
The rule of law implies that the functions of the government in a free society
should be so exercised as to create conditions in which the dignity of man as an
individual is upheld. This dignity requires not only the recognition of certain
civil or political rights but also creation of certain political, social,
economical, educational and cultural conditions which are essential to the full
development of his personality. From the major findings of the Delhi.
Declaration following principles of rule of law can be derived:
- To safeguard and advance the political and civil rights of the
individual in a free society
- To establish social, economic, educational and cultural conditions under
which the individual may realize his legitimate aspirations and dignity.
- It should not interfere with the religious belief and should not
restrict freedom of speech or freedom of person.
- No discrimination on minority groups.
- Adequate safe guards against abuse of power by the executives.
- There should be an independent judiciary with security of tenure free
from legislative and executive interference.
- A functional, impartial and independent judiciary.
So it can be said that rule of law cannot be any law passed by the government.
It is a rational set of rules keeping in mind the above principles passed after
adequate debate and discussion of the law making body of that state. Laws should
be enforced equally and consistently, adhering also to international human
rights principles. The Rule of Law provides modern societies with stability and
a clear system for resolving conflicts between citizens within a community of
Application of Rule of Law Beyond National States
The roots for the application of the principle of the Rule of Law to interstate
relationships within international society, as pointed out by professor
Koskenniemi, could date back to the XVIII century. It has now come around
that rule of law not only protects the individuals from the arbitrariness of
government but also from other individuals at national level and also from other
nation states at international level. There are several spheres such as economy,
environment, security, etc where the actions of individuals in one state can
affect the subjects of other nations.
States act as the agents of their citizens and there are many direct or indirect
interactions among two or more states which are regulated by the international
law. These interactions have an impact on the subjects of states party to it
which can be either good or bad. Thus, it would not be wrong to say that rule of
law as an exclusively national concept is not sufficient to guard individual
freedom and well being and has to be brought in the international legal order.
The States power submission to the law, in the international practice, has been
an object of constant attention during the past decades.
Looking into the institutional framework of United Nations, one gets to know
that the principle of Rule of Law has been a fundamental part in the contents of
particular resolutions that have been adopted within the General
Assembly. Also, it has played an important role on several reports that the
Secretary-General has presented to that Organization’s General Assembly.
The international version of the Rule of Law acts as a break to the arbitrary
exercise of States power –both at national and international level. On one side
the international law limits the external sovereignty of States by means of a
group of legal norms that restrict certain acts which a State can execute
against another or against the general interests of the international community
of the States as a whole.
While on the other hand, it limits the internal sovereignty of States by means
of several legal dispositions that circumscribe the exercise of States’ power
over their nationals –or any other person under their jurisdiction– with respect
to certain fundamental rights. The legal instruments for the international
protection of human rights and other conventions which prohibit the use of force
in international relations have the quality of jus cogens norm and thus are an
example of reasonable limits on the sovereignty of the states. The international
version of the Rule of Law would keep the order and would coordinate the
behavior of the States and other subjects of international law.
That is, the international version of the Rule of Law would increase the
security, contributing for the relationships established among different
subjects of international law to be more foreseeable and stable. By making
international relations more foreseeable, the discretion would be restricted
and, therefore, the arbitrariness of the States would be reduced, thus favoring
the existence of a more stable international order and relations. The General
Assembly of United Nations have also externalized some structural elements of
domestic rule of law and applied to international relations itself.
United Nations and Rule of Law
The United Nations was established in 1945 to maintain peace and order in the
social world. It was created to stand on three pillars i.e. international peace
and security, human rights and development. According to United Nations the
opportunities and challenges brought it by the complexities of the social,
political and economic transformations of the society must be given a collective
response guided by the rule of law as it is the foundation of friendly and
equitable relations between states and the base of fairs societies.
For the United Nations (UN) system, the rule of law is 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 measures to ensure adherence to the principles of supremacy of the
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. The rule of law is a fundamental requirement for achieving the
societal goals of international peace and security and political stability;
achieving economic and social progress and development and protecting people’s
rights and fundamental freedoms. It is foundational to people’s access to public
services, curbing corruption, restraining the abuse of power, and to
establishing the social contract between people and the state.
The United Nations General Assembly passed a resolution 61/39, :
The rule of law at national and international levels in 2006. With this
regard, resolution 61/39 acted as a the precedent from which the General
Assembly of the United Nations began to study the principle of the Rule of Law
in a broadly international perspective. In resolution 61/39, the General
Assembly of the United Nations introduced for the first time into the practice
of the Organization, a specific distinction between the Rule of Law domestically
and the Rule of Law internationally or it can be said that it applied the rule
of law to the field of international relations.
In the preamble of the Resolution 61/39, the General Assembly of the United
Nations highlighted the promotion of the Rule of Law as a cross-cutting element
to the maintenance of peace and international security, the realization of
sustained economic growth, sustainable development, the eradication of poverty
and hunger and the protection of all human rights and fundamental freedoms.
Similarly, the General Assembly pointed out that human rights, the Rule of Law
and democracy are interlinked and mutually reinforcing and that they belong to
the universal and indivisible core values and principles of the Organization.
In order to sum up, through the adoption of resolution 61/39, the United Nations
launched the machinery to try to establish the meaning and scope of the Rule of
Law at international level. From the precedent set by resolution 61/39,
resolutions 62/70, 63/128, 64/116, 65/321, 66/102, 67/97, 68/116, 69/123, 70/118
and 71/148 have been further approved within the General Assembly of United
Nations that are also entitled the Rule of Law at national and international
Presently, UN holds that Rule of law and development are strongly interlinked,
and strengthened rule of law-based society should be considered as an outcome of
the 2030 Agenda and Sustainable Development Goals (SDGs). In particular, Goal
16 is an enabling goal for Member States to generate national-level policy
changes that advance progress on other SDGs. The development of inclusive and
accountable justice systems and rule of law reforms will provide quality
services to people and build trust in the legitimacy of their government.
This approach should respond to the needs of individuals and groups and their
meaningfully participation from the outset, paying particular attention to those
historically marginalized and at risk of being left behind. It includes
prevention of serious violations of human rights, achieving credible
accountability for those responsible at national and international levels and
empowering individuals and communities to make use of justice mechanisms to
protect their fundamental human rights.
The rule of law is an important component of sustaining peace, as advanced by
the General Assembly and Security Council in the twin resolutions on the review
of the peace building architecture. Sustaining peace requires an integrated and
comprehensive approach across the UN system, based on coherence between
political, security, development, human rights, gender equality and rule of law
activities in support of Member State-led efforts.
Considering the advanced structure of the world community the problems
against Rule of law include certain emerging and critical issues such as the
proliferation of hate speech and incitement to violence; preventing
radicalization/violent extremism; climate change and the environment impacting
on the security and livelihoods of people; and the complexities of artificial
intelligence and cybercrime.
International Legal Scenario and the Problems
The international rule of law among the nations as a general principle is still
at an early stage of its development. Some authors believe that the structural
differences that exist between domestic and international legal orders represent
a great obstacle for the construction of a Rule of Law theory in the
international realm. However, the structural differences between national and
international legal order do generates certain skepticism about the
internationalization of rule of law.
Such differences can be reflected from the vertical relation which exists
between the states and who they govern at the national level and the horizontal
form of international social environment among the sovereign states. There is no
existence of any central government, neither a compulsory judiciary nor
executive power. Likewise, there is an imminent political nature for the
solution of international disputes and lack of compulsory jurisdiction of
International Court of Justice.
All this brings a great reluctance towards the implementation of rule of law in
the global legal order. Attempts for the establishment of a world compulsory
arbitration, inspired by a desire to secure principle of law in international
relations failed at The Hague Peace Conferences in 1899 and 1907 and
judicial means of dispute settlements have remained the matter of disposition of
States. As it is still considered to be in early stage there have been certain
developments in the favor of international scenario of rule of law.
The possibilities of compulsory judicial determination may vary from one field
of world region. The international trade regime, which functions in the
framework of the WTO, includes a compulsory dispute settlement mechanism. The
international trade regime, which functions in the framework of the World Trade
Organization (WTO), includes a compulsory dispute settlement mechanism.
The supreme convention regulating the sea related issues i.e. the UN
Convention on Law of Sea
 (UNCLOS) includes compulsory judicial
mechanisms for dispute settlement. At the regional level, a distinguished
example is the European Convention on Human Rights. All 47 Members of the
Council of Europe are Parties to the European Convention on Human Rights and, as
such, accept compulsory jurisdiction of the European Court of Human Rights.
The absence of a world compulsory mechanism for dispute resolution is not in
favor of the ROL, though not an inherent deficiency of international legal
order, rather the failure of States. Also, though there is no world government
but the United Nations Security Council can intervene in the matters of human
rights of its member countries. International human rights law is dedicated to
the most important relationships between a State and individuals under its
jurisdiction, which make a substance of the Rule of Law. By the establishment of
minimal standards of human rights, that branch of international law secures a
worldwide minimum of the Rule of Law. On the other hand, by developing standards
on the right of fair trial or the right to effective remedy, or by establishing
standards which internal law has to meet, to be recognized as legally
appropriate limits of the human rights, international human rights law directly
improves the Rule of law.
Even after years of discussions there have not been derived an exact definition
of rule of law among nations which can be commonly accepted by all the states at
international level. The attempt to reach a definition that can be commonly
accepted by all States which is leaded in the heart of the International
Organization by the Secretary-General and the General Assembly, has been
hampered by the lack of consensus around the scope and meaning of this principle
at international level.
However, the practice of the General Assembly concerning the invocation and
employment of the principle of the Rule of Law among nations is clear that in
speaking of this concept would have been externalized to the international level
some structural elements of the domestic Rule of Law from the only explicit
definition of this principle that exists within the Organization practice (which
was created by the Secretary-General in the field of post-conflict societies).
In that sense, the five basic elements of the Rule of Law externalized –mutatis
mutandis– to the international realm in the framework of the Rule of Law among
nations principle would be: an international order based on law; the uniformity
of application of international law to all subjects equally; the prevention of
the arbitrary exercise of power of States; the independent and effective
implementation of rules of international law; and the compatibility of rules of
international law with the principle of inherent dignity of human being.
On the foregoing, one can conclude that these five basic elements would capture
the essence of the Rule of Law among nations principle that United Nations has
projected towards international realm supplementing the International Rule of
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