5 - Rule of Law

Summary

The term “rule of law” has no fixed meaning. It originated in normative writings on law and government, principally by Western authors, and each tailored the term to fit his or her vision of the “ideal” or “just” state. As a consequence, one recent survey of how the concept has been used in Germany, France, the United Kingdom, and the United States concludes that it “belongs to the category of open-ended concepts which are subject to permanent debate”. The term is worth taking seriously because it suggests the possibilities and limitations of a law-based approach. Whatever may be its ultimate scope, the rule of law offers itself as a counter-proposition to arbitrary rule, or rule by caprice. It is a statement of the supremacy of law over personal rule, or expedient politics. As such, the rule of law acts to restrain the exercise of power, by imposing the need for accountability on those who employ power in the name of the public good.

The rule of law provides a foundation for legal respect for human dignity. It is rightly regarded as the central principle of constitutional governance. Critically surveying the work of such theorists as Friedrich von Hayek, Ronald Dworkin and Roberto Unger, Judith Shklar takes the view that the rule of law should be recognized as an essential element of constitutional government in general, and of representative democracy in particular. Its boundaries are set by enduring concerns over the fear of violence, the insecurities of arbitrary government and the discriminations of injustice.

Meanwhile, as has been mentioned earlier, the topic of the rule of law vis-à-vis shari'a is a controversial topic. The image is that Islamic law allows the ruler (Caliph, King, Prime Minister, or President) to govern without accountability and transparency. This concurs with other images that shari'a does not provide procedural regulations to control the government; shari'a does not have a clear rule on how to elect the government and how to limit the powers of the government; and there is no judicial independence in the countries that enforce shari'a.