Talk:Rule of law

From Wikipedia, the free encyclopedia

⚖
Law Portal
This article is within the scope of WikiProject Law, an attempt at providing a comprehensive, standardised, pan-jurisdictional and up-to-date resource for the legal field and the subjects encompassed by it.
??? This article has not yet received a quality rating on the assessment scale.
Top This article has been assessed as top-importance on the assessment scale.
Socrates
Philosophy Portal
This article is within the scope of the WikiProject Philosophy, which collaborates on articles related to philosophy. To participate, you can edit this article or visit the project page for more details.
??? This article has not yet received a rating on the quality scale.
??? This article has not yet received an importance rating on the importance scale.
48px} This article is part of WikiProject Human rights, an attempt to build a comprehensive and detailed guide to Human rights on Wikipedia. If you would like to participate, you can edit the article attached to this page, or visit the Project page, where you can join the Project and contribute to the discussion.
Start This article has been rated as start-Class on the assessment scale.
High This article has been rated as high-importance on the assessment scale.


No offense, but the continual insertion of references to China in this article is frankly weird. The choice of "features" of the rule of law is selective and inadequate. The final paragraphs are off. The "critical theorists" link ought to be to "critical legal studies" (they are not mentioned in the "critical theorists" page) and/or "legal realists".

When we say that the supremacy or the rule of law is a characteristic of the English constitution ...

Shouldn't that be "the supremacy of the rule of law"?

-- mpt, 2003-05-23

No. I double checked it, in the previous paragraph he was discussing the supremacy of law. You can check an online version at www.consitution.org [1] if you put in a find for "when we say" you can see the quote in a larger context. Here is the quote in context:

Three meanings of rule of law.
of the supremacy of law as being a characteristic of the English constitution, are using words which, though they possess a real significance, are nevertheless to most persons who employ them full of vagueness and ambiguity. If therefore we are ever to appreciate the full import of the idea denoted by the term "rule, supremacy, or predominance of law," we must first determine precisely what we mean by such expressions when we apply them to the British constitution.
When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions.

So it appears that the quote "the supremacy or the rule of law" is correct.

-- Alex756

Just a note. This article ought to demonstrate that I'm not against writing about cross-cultural concepts when in fact those concepts are cross-cultural. Unlike divine right of kings and royal prerogative, rule of law is a ***very*** important concept in Chinese politics.

The part about rule of law in traditional Chinese thought needs to be looked over for NPOV. To what degree rule of law figured in traditional Chinese political thought is actually a really active area of historical research.

-- Roadrunner

Beg to differ. The "rule of law" is in itself a precisely defined law. It is the highest law of mankind, stated below:

“the suppression of forceful and fraudulent methods of goal seeking”

“all are treated equally by the law”. This means ALL, including king and judges

“absolute property rights”

This in turn is based on the fact that human behavior (the topic of law) is about goal seeking. In the seeking of any goal, there are only three possible methods: force, fraud and honest trade. Any transaction that is not an honest, mutually agreed trade will cause a self-defensive response (conflict) from the victim whose survival has been affected.

"The Rule of Law" is the glue that keeps all of mankind acting together in common interest, tied together by mutual dependence of trade, on an evolutionary path to excellence. Force and fraud creates conflict and destroys civilizations. Mankind is now on a devolutionary path to extinction because the co-operation once forced by "the rule of law" has been replaced by legitmizing force and fraud for those who incorrectly believe they wield power.

Rule of Law, Defined: http://www.nazisociopaths.org/modules/article/view.article.php/c1/34

Purpose of, Reasons For: http://www.nazisociopaths.org/modules/article/view.article.php/36

Full Proof: <http://www.rossco.org/HumanNature.pdf> Read appendices first.

- rossb@rossco.org

The definition of "the rule of law" offered here is not very satisfactory:-

"The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure."

Surely the whole body of Common Law in the English-speaking countries falls outside this definition, as with much of International Law. Also some points raise some problems e.g. "legal equality". There remains some very limited forms of legal anti-Catholic discrimination in Britain, and not so long ago this was more far-reaching. A lot of societies have suspended Habeas Corpus at times. The Pinochet case in Britain recently was controversial, but nobody argued that the idea that certain people (e.g. heads of state) had immunity from prosecution was inherently incompatible with the rule of law. Some of these definitions would render meaningless terms like e.g. Roman Law. PatGallacher 16:42, 2005 July 31 (UTC)

Actually, you're confusing the word "law" with the word "statute." Statutes are laws that originate with legislatures. But rules articulated in common law legal opinions are also laws as well, in the sense that if any particular defendant does not obey them, then a lower court will apply them against that defendant, if and when that defendant is sued or charged. For example, even though some conservative judges do not like the case of Miranda v. Arizona, they will apply the Miranda exclusionary rule to throw out any confession that was obtained without first giving the defendant his Miranda warnings or without a knowing, voluntary waiver of Miranda rights. They will do that because they know that if they do not, then the defendant's conviction may be reversed on appeal, and then the case may be remanded to their courtroom for a new trial (and trial judges always have too many cases to deal with at any given time).

The point is that laws can come from both courts and legislatures (pursuant to procedures established by tradition or by constitutions), and then must be obeyed. --Coolcaesar 19:51, 31 July 2005 (UTC)

Contents

[edit] Was rule of law opposed in totalitarian USSR?

For example, Stalin ruled with the significant help of law. Rule of law wasn't opposed, but the law was bad. —Preceding unsigned comment added by 80.94.225.222 (talk) 19:55, 22 September 2005

[edit] Lord Bingham's sub rules

I've edited out "The British View" from that section. Lord Bingham's opinions do not represent british legal thought as a whole, but only a small subset of it. His contentions are not at all the subject of widespread agreement Lawrencewiseman 20:57, 22 October 2007 (UTC)

[edit] Chaos Theory?

The last paragraph sound like original research. It's an interesting concept, but I'm not sure it's entirely appropriate. Perhaps it needs citations? Discuss. (oops, forgot sig) 71.103.179.174 03:17, 24 December 2005 (UTC) Bvanderveen 03:18, 24 December 2005 (UTC)

While interesting, I believe it should be removed as original research until someone comes back here and provides a citation to a relevant book or article that actually provides justification for such a wild connection. --Coolcaesar 00:54, 26 December 2005 (UTC)

[edit] This page needs work

I thought that there would be something useful on this page, but in fact it needs quite a lot of work to make it a useful resource. I cannot claim to be an authority and so I would not like to edit it but I think there should be clearer links to the historical emergence of the concept. Magna Carta is not even mentioned and there should be some summary of historical and current issues about abuses of the concept.

Sorry just to be critical, but I have to move on.

Anotherstuart 12:06, 13 June 2006 (UTC)

I agree with Anotherstuart. This article definitely needs to be cleaned up and re-writen to sound like a single consistently encyclopedia article. For example, I've always understood the 'rule of law' to include three elements: generalizability, universability, and predictibility. The article seems not to make this clear. {rfc} perhaps? N2e 22:36, 31 July 2006 (UTC)

[edit] Called for a cleanup

This article sounds like it was written by many different people (obvoiusly that's because it actually was written by several people-still, the goal of an article is to make it sound uniform and logical, right?). Parts of it, such as the criticism sections, are very poorly written. The most egregious aspect of this article is that it has one section called "criticism" and one called "critiques," one of which is so short that it's actually containede in the other section. That's pretty darn bad.


--I agree - perhaps what this shows is how the rule of law is interpreted in different ways in various countries- USA and UK fpr example. In England and Wales we talk about, nobody being above the law, the law applying to all equally, the law being applied equally. The idea of judicial precedent the hierachy of the courts help to enforce the rule of law. Obviously the apparent flexibility of the rule has led to systematic abuse in all so called 'democratic and non-demorcratic states'. Alex

[edit] clairifactions por favor

In the section on Chinese interpretation of the rule of law the page states that the communist regiem takes the stance they the gov rules "by law" instead of "of law". This I feel is an important distinction and needs to be claified. Im having trouble making a distinction between any government making laws of any kind that restrict the free movement of peoples and a system where there is a lack of "rule of law". A monarchy can make a new law that taxes water wells. The king might be taxed since he has a water well. A totalitarian gov may pass a law removing all Jews to labor camps. Would not the Arian germans be also subject to the "rule of law"

 I guess that I just dont understand the benefits of 'the rule of law", beyond a 18th century european monarchy.

[edit] Equations

I am removing the following line from the main article:

  In Canada the Rule of Law is equated with the Supremacy of God, per the preamble to its Constitution Act of 1982

While the preamble to the Charter indeed states:

  Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law

I fail to see how the two are equated. The fact that both are used as founding principles doesn't entail that there is any equivalence among them. E.g., I might recognize both the supremacy of God and the blueness of the sky, but this doesn't mean that I equate the blueness of the sky with the supremacy of God. Not explicitly distinguishing between the two doesn't necessarily entail any similarity, whatsoever, between them. 24.141.65.71 01:55, 30 October 2006 (UTC)

The user who added this absurd statement (208.114.190.23) is a repeat vandal on a variety of canadian/religion/monarchy pages using similar pseudo-logic. Every other contribution he has made has been reverted, this is thankfully no exception. -- abfackeln 11:29, 5 November 2006 (UTC)

[edit] Double Jeopardy

We are told in the article that the concept "rule of law" is generally associated with several other concepts such as Double Jeopardy. ie “Individuals may only be punished once for every specific crime committed.” Two questions: According to the definition offered, what does this mean? That a doctor convicted of performing an illegal operation can either be fined or have his licence taken away but can’t be fined and have his licence taken away. Or does it mean that he can be convicted and jailed for five years today, but after the five years are up he can’t be jailed for another five years? How could that be a problem anyway as all crimes have fixed maximum sentences and the total he would eventually serve could still never exceed the maximum? Secondly, whatever the answer is, what does double jeopardy have to do with the rule of law and the illegitimacy of arbitrary government? Edward Carson 22:40, 30 October 2006 (UTC)

The reason is that a ban on double jeopardy prevents a would-be dictator from repeatedly locking up his opponents for the same minor trumped-up crimes. It also creates an basic expectation of fairness, in that people come to trust that even if they are convicted of a crime, they will have to serve time for it only once, and not get "surprised" at the end of their sentence with a new one! The point is to create trust in the government and civil servants so that people will behave lawfully in the presence of government officers and vice versa. Double jeopardy is just one piece of many other pieces that come together to create such trust and make the rule of law work. --Coolcaesar 06:04, 1 November 2006 (UTC)

Double Jeopardy is a prosecutorial bar stemming from the 5th amendment and it only applies to criminal prosecutions. So your question about the doctor being fined and losing a license isn't necesarrily apt because revocation of a license isn't necesarrily a result of criminal prosecutions. What the 5th amendment does do is prevent a defendant who has been convicted, acquitted, or been punished from being tried again or punished again for the same or a substantially similar charge/set of facts. A leading case is 369 U.S. 141, Foo Fong v United States. The two major exceptions are: a state can prosecute a defendant that the federal government failed to convict, or vice versa, and where there were cases where a judge was bribed or something crazy like that, a defendant can be retried. There is also no double jeopardy bar between criminal and civil prosecutions. For example, a white supremacist cop kills an African American. Let's say for whatever reason he is acquitted on a murder charge, he can still be prosecuted for violating the victim's civil rights. One charge is a criminal prosecution the other is a civil charge. Also sentencing guidelines are not necesarrily binding on judges either, in some states they are binding, in others they are merely advisory. I'm not sure of the exact origins of the American rule against double jeopardy but I imagine it has something to do with the King repeatedly prosecuting his enemies arbitrarily during the colonial period. Gardiangel 04:37, 29 March 2007 (UTC)

Coolcaesar, I don’t think there’s any historical evidence of a people being punished twice for the same crime where double jeopardy in law doesn’t exist. It’s generally there to stop someone acquitted from being tried again. GardiAngel, Whatever the alleged virtues of Double Jeopardy you haven’t really given reasons why it is relevant to the rule of law. It just seems the original writer of this article wanted to add some of his pet policy beliefs to the list of fundamental pillars of the ‘rule of law’. Why not go further? More fundamental aspects of the rule of law are that the death penalty shall exist for the crime of murder; that legal aid shall be granted to the indigent; that only a simple majority of eleven out of twelve shall be sufficient for a conviction; that no one shall be forced to be a witness against himself; that jurors shall be sequested only in five star hotels with cable TV and room service. Edward Carson (talk) 03:46, 7 May 2008 (UTC)

[edit] Lord Bingham in intro

I realize that Lord Bingham is well respected in the world community but his being uniquely quoted in the introduction of this article implies that he is THE authority on the subject. I see no justification for his statement being so prominently featured. At most a passing reference in the intro as a "current event" might be appropriate although even that seems a stretch. There are a couple of others mentioned in the intro less prominently and even these seem inappropriate. Ideally no individual should be mentioned in the intro unless that individual is truly a key figure (e.g. it is reasonable to mention Martin Luther in the intro for the Protestant Reformation).

Is there some particular justification for this? --Mcorazao 19:48, 14 January 2007 (UTC)

I removed the quote from 16 November 2006. Wikipedia is not about things done in school court yesterday. -- Petri Krohn 16:34, 5 February 2007 (UTC)
the introduction of LOrd Bingham's views is just a knowledge of the subject and a suggestion. while it need not be mentioned in a detailed way, a brief note is evidence of a good analysis and research. —Preceding unsigned comment added by 87.194.168.117 (talk) 14:48, 8 June 2007

[edit] Miranda exclusionary rule

This is adressed to the user CoolCaeser. There is no such thing as the "Miranda exclusionary rule." The exclusionary rule is a result of the Supreme Court case Mapp v Ohio. The citation for that case is, 367 U.S. 643. Miranda was the application of the exclusionary rule as a remedy to defendant's who have not been advised of certain rights by the police. ~~gardiangel~~

[edit] Rule of law index graphic

The source (not mentioned or directly linked) seems to come from the World Bank, what could be not reliable and could have political bias, since the World Bank is control by a small group of countries. The graphic should come a reliable organization, if not, it should be removed.--ClaudioMB 03:32, 24 May 2007 (UTC)

I would like to second that. Especially tagging the U.S. all dark green even though there were plenty of incidents after 9/11 seems suspicious.

I also agree. The issuance of National Security Letters in secret, the erasure of Habeas Corpus, and the rise of extraordinary rendition, all bought about under the US Patriot Act, indicates that the Rule of Law in the US has been severely weakened since 2001. The data does indeed come from the World Bank, an organisation that has been criticised as "an intrument for the promotion of US and 'Western' interests" [2], so the data particularly for the US and the other Western Nations is potentially biased. The map should be removed. --Retrogradeorbit 08:30, 17 October 2007 (UTC)

Recent events in Canada also indicate that Rule of Law has been weakened. http://www.dominionpaper.ca/articles/1451 —Preceding unsigned comment added by 70.66.59.199 (talk) 05:52, 27 October 2007 (UTC)

This article and, as the best evidence, this graphic are ridiculous propaganda in support of the US/West/Capitalist Economies as "good guys" while governments such as Venezuela are "bad guys" where the "rule of law" is not followed/trusted. It has to be clear, as in other comments above, that the consent of the governed and trust of the law is probably higher in countries like Venezuela and much lower in countries like the US where, even by the definitions in this article, the "rule of law" is practically a shell. For example, by these definitions when agents (like police) are able to commit murder and hardly ever go to jail, certainly there is no "rule of law" as such. This graphic must go, but the whole article should be cleaned up. This is one of the worst articles I've come across on Wikipedia. Salauddesade (talk) 07:05, 11 May 2008 (UTC)

I do not believe that this makes the entire article merit an NPOV tag. Kukini háblame aquí 13:43, 13 May 2008 (UTC)

[edit] Rechtsstaat?

--Ceridan 23:07, 6 July 2007 (UTC) Sorry, I'm new to discussing on Wikipedia... anyway, I'm just completing university education in the Czech Republic and I attended a few semesters of law theory and politology and I have never heard the term "Rechtsstaat" so far. I think it is kind strange. And this entire article needs a rework. Not that I would feel competent enough to do so :)

[edit] No Cases

Shouldn't there be cases to support the application and judicial development of this doctrine? e.g. Entick v. Carrington? --RawEgg 01:21, 25 September 2007 (UTC)

[edit] Outdated Map?

The title of the map says 2005, but the under the map it says 2006. Apart from an update being necessary, the date should be clarified. --Asdirk (talk) 09:52, 17 January 2008 (UTC)

[edit] rule of law

not cool —Preceding unsigned comment added by Yugioh7205 (talk • contribs) 17:23, 12 March 2008 (UTC)