Rule of law in general

1. Rule of law in general The rule of law is the "supremacy of regular power as opposed to arbitrary power. The phrase can be traced back to the 17th century, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".[Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law

2. Meaning • Set of rules either written or based on precedence that is applicable to all constituents of a society. • Rules of game don’t change—nobody is above the law. • A set of laws/procedures/rules that governs society and are consistently enforced, equally to all to all citizens regardless of status. • All people are treated equally under the country’s legal procedures.

4. United Nations Definition of Rule of Law: • 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, as well, measures to ensure adherence to the principles of supremacy of 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.

5. World Justice Project: Rule of Law Index • Four Principles: • The government and its officials are accountable under law. • The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property. • The process by which the laws are enacted, administered and enforced is accessible, fair, and efficient. • Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representative, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. • http://www.worldjusticeproject.org/rule-of-law-index/

6. Aristotle advocated the rule of law: • It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws

7. Roman statesman Cicero, We are all servants of the laws in order that we may be free. During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury

8. China • In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law. • In contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to

9. India • In India (Bharat), the rule of law worked on the basis of moral responsibility of the citizens as well as the rulers of the kingdom. Two main systems dictated the laws in the ancient Indian society, Dharma (every person must fulfill his/her responsibility to the best of their abilities) and Manusmritis, written by various scholars that outlined laws such as Inheritance laws, Marriage laws, Laws regarding criminal activities etc. Manusmritis were also edited and new laws were added to accommodate changing situations, just like modern times. • the ruler was under the law. 

10. UK • Magna Carta • Dicey ‘s Concept

11. Modern Rule of law • An early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons: • Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government

12. Bracton • Bracton said, quod Rex non debed esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.)."

13. Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title is Latin for "the law is king" and reverses the traditional rexlex ("the king is the law"). John Locke also discussed this issue in his Second Treatise of Government (1690). The principle was also discussed by Montesquieu in The Spirit of the Laws (1748).  • The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755)

14. USA •  Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” •  In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men.

15. Modern Theorists • Among modern legal theorists, most views on this subject fall into three general categories: the formal (or "thin") approach, the substantive (or "thick") approach, and the functional approach. • Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. • Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law

16. Cont… • The functional interpretation of the term "rule of law", consistent with the traditional English meaning, contrasts the "rule of law" with the "rule of man."[26] According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of law". • The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion.

17.  A government based on the rule of law can be called a "nomocracy", from the Greek nomos (law) and kratos (power or rule

18. Tamanaha, Brian. “The Rule of Law for Everyone • Current Legal Problems, volume 55, via SSRN (2002): • Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights.

19. Assessment of Nepal • Constitutional Provision • Legal Provision • Institutional set up

20. Assessment assessment identified three principal challenges for rule of law development: - The foremost challenge is a widespread impunity that is impeding law enforcement, fueling a breakdown in law and order, and enabling crime and violence to proliferate. - A second major challenge is limited access to justice, especially for vulnerable and marginalized populations, and the historic exclusion of many from representation in justice institutions and the legal profession on grounds of gender, ethnicity, and caste. - The third challenge is the need for independence and professionalism to enable the justice system to serve as a check on abuse and a protector of rights and constitutional norms.

21. Assessment Nepal’s courts are arranged in three tiers. There are 75 first instance courts (district courts), 16 intermediate courts (courts of appeal), and an apex court (Supreme Court). There are also a few specialized tribunals, and certain administrative officials have quasi-judicial powers. The overall workload of the courts is not heavy, although there are major delay problems. The likely explanations for delay appear to be procedural and managerial, including inefficient allocation of judges and staff. While some district courts handle very few cases, the broad jurisdiction of the Supreme Court creates a relatively high rate of congestion. One significant factor in the workload of the courts is the low volume of criminal prosecutions by the Office of the Attorney General. The effectiveness of the courts is impaired by widespread disregard for judicial decisions and orders, many of which are not enforced.

22. Suggestions • Ending impunity and achieving the effective application of the law • Expanding inclusive access to justice and equal protection of the law • Strengthening independence and professionalism