The Perfect Rule of Law
TOWARDS AN INTERNATIONAL LAW OF CO-PROGRESSIVENESS, pp. 41-58, Sienho Yee, ed., Martinus Nijhoff, 2004
Posted: 15 Apr 2012
Date Written: April 15, 2004
What is so interesting about the rule of law is that although the concept is 'elusive', people from around the world all think they know what it means. People from all corners of the globe use the phrase without feeling the need to add any explanation. For example, the rule of law is enshrined in the preamble of the European Convention on Human Rights and in Article 5 of the Constitution of the People’s Republic of China. It was stressed by many a statesman during the debates at the United Nations General Assembly in September 2003. Yet, the literature shows that at least among the scholars and thinkers there are significant differences of opinion on what the rule of law is.
I will begin my inquiry by describing and critiquing three commonly-found, but incomplete (in my view) formulations of the idea of the rule of law: the rule of law as a shield against governmental authority (the Dicey view); the rule of law as the rule of higher and just law; and the rule of law as the rule of rules or the law of rules. I will then make my own attempts (more or less my own, but based on the raw materials of others) at giving more 'complete' accounts of the concept by presenting: two formulations of the imperfect rule of law - the coercive rule of law and the extra-legal rule of law - and what I consider to be the perfect rule of law - the rule of law as law serving as the ultimate reason for voluntary action. The central tenets of each view are presented, critiqued (to some extent anyway), and then applied to the international circumstances.
The 'perfect rule of law' formulation states that law is complied with simply because it is law, serving as the ultimate reason for voluntary action. The perfect rule of law requires that the existence of law or the concept of law coincides with the law as the ultimate reason for action and with the state of affairs called the rule of law. This coincidence of various factors centers on law serving as the ultimate reason for voluntary action. This formulation takes better account of the need to give meaning to both the word 'rule' and the word 'law' in the phrase 'the rule of law'. Admittedly such a formulation at present only describes an ideal state of affairs that we can only strive for, both in a national society and in international society.
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