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Revisit the Rule of Law:
Concepts in Domestic and International Levels
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DONG Hao
July 2006
Contents
I. Introduction
II. Rule of Law in Domestic Level
A. Dicey’s Liberalism Concept
B. Raz’s Positive Formalism Concept
C. The Requirements to Rule of Law in Domestic Level
III. Rule of Law in International Level
A. The Concept of International Rule of Law
B. The Distinctions between International Rule of Law and Domestic Rule of Law
C. Argument to the Fashionable Concept of International Rule of Law
D. Case Study: Rule of Law in China and China in International Rule of Law
IV. Conclusion
I. Introduction
The term Rule of Law derives from Aristotle’s dicta, “the rule of law is better than that of any individual.”[1] In English, this term can be compared with various concepts, such as “equality before the law”, “government of law”, “Lex, Rex” and “the supremacy of law”, etc.[2] But the most broad and influential one is the Rule of Law. In German, the equivalent term to “rule of law” is “Rechtsstaat”, which was firstly used by J. W. Placidus in his Literatur der Staatslehre (National Theory).[3]
This essay is a brief review of the concept of rule of Law from domestic and international perspectives. To my knowledge, the term “rule of law” and the term “international rule of law” are very distinct from each other. Hence, when we are discussing one of these two terms, we should avoid being wrongfully influenced by notions originally talking about the other one. By this logic, my argument is that although these two issues are highly relevant, they are not necessarily connected with each other. If we define the international rule of law as a norm of justifying some governments’ arbitrary actions to their people, we are actually discarding the international rule of law. On this basic idea, I briefly discussed the situation of rule of law in China and China in the international rule of law. This case study favored my argument. Nevertheless, this essay still focuses on the definition of rule of law respectively in domestic and international levels.
II. Rule of Law in Domestic Level
The slogan of Rule of Law is so significant that has been discussed by many prominent philosophers, and it can not be recounted in a short essay. Nevertheless, in the English context, the following two versions of the concept of rule of law can not be ignored. They are, by my own recapitulating, “Liberalism" or "Parliamentalism” concept from A. V. Dicey and “positive formalism” concept from J. Raz. Before revisiting these theories, I would emphasis that they are not absolutely tit for tat, but, at various aspects, the latter was influenced by the former.
A. Dicey’s Liberalism Concept
No serious discussion on rule of law would ignore Albert Venn Dicey. He was regarded, in British law system, as the first one illustrating the concept of rule of law systematically.[4] By using the terms of “supremacy of the law” and “predominance of rigid legality”,[5] he introduced an absolutely liberalism concept of the rule of law. “The rule of law … has three meanings”, he defined,[6] firstly, “absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power”, secondly, “equality before the law”, and lastly, “a formula for expressing the fact that with us the law of the constitution”. “No man,” Diecy said afterwards, “is punishable or can be lawfully made to suffer in body or goods except for a dismanner before the ordinary courts of the land.” [7]
For there is no a single typical Constitution in Britain, the British sovereign may be very equated with the Parliament sovereignty, so Dicey stressed the relationship between the dominant of law and the sovereignty of the British Parliament. “The will of the Parliament can be expressed only through an Act of Parliament,” which “greatly increased the authority of the judges”, so “Parliament as such has never … exercised direct executive power or appointed the officials of the executive government.”[8]
Even with these explanations, Dicey’s notion on rule of law was still criticized by Sir Ivor Jennings. He reminded the actual power of the Parliament and the Cabinet, and did not think that the laissez-faire would really leads to the rule of law. An Act of Parliament “can express anything whatever”[9], so “the law is that the law may at any moment be changed”[10]. However, this challenge did not, from the perspective of formal rational, fundamentally defeat Dicey’s notion. Thus, his concept of rule of law was repeated again and again.
B. Raz’s Positive Formalism Concept
By stressing that it “is just one of the virtues which a legal system may possess”,[11] Joseph Raz defined the rule of law from its literal meaning, “the government shall be ruled by the law and subject to it…government by law and not by men.”[12] For avoiding the obscurity, Raz illuminated this doctrine by two basic ideas: “the making of particular laws should be guided by open and relatively stable general rules”, and “if the law is to be obeyed it must be capable of guiding the behavior of its subjects.”[13]
Whilst emphasized that his conception of rule of law is a formal one,[14] Raz derived some principles from the above basic ideas.[15] On the table of these formal rational dictums,[16] naturalist and positivists stood together on the doctrine of rule of law, at least on some basic principles. Nevertheless, it must be stressed that Raz did not regard any of these principles as a uniform, universal and natural laws higher than the positive law, their validity or importance depend on the particular circumstances of different societies. This is the distinction between him and naturalist: “A nondemocratic legal system…may…conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.”[17]
It can not be merely in a footnote that Raz’s concept of rule of law has been deconstructed by Professor George P. Fletcher. He found that in European languages, Rechtsstaat (rule of law) “is based always on the term for Law in the higher sense”, and this higher sense helps English speakers separating positive conception from “ideal rule of law”, which “incorporates criteria of justice”.[18] On this notion, I have two comments which may be controvertible with each other. On the one hand, the endeavors of padding the linguistic, if not cultural, gap are very important in the contemporary globalizing world, especially in the dialogue between western and eastern states. On the other hand, I doubt this material notion on rule of law would complicate the dialogue since every one may have his/her own ideal pattern on the Rechtsstaat. Zheng Yongliu, a prominent Chinese scholar, has noted that the naturalist’s approach of “material” rule of law had been abused by National Sociologists in the Third Reich,[19] and that tragic yesterday shall not be once more wherever.
C. The Requirements to Rule of Law in Domestic Level
In my opinion, so far as the following two aspects are fulfilled, a nation can be described as that of under the rule of law. Firstly, among various means of social control, law stands on the domination status.[20] Laws are not omnipotent – there are many controlling means in a society. Hence, as long as the promulgated laws stand on the main status in resolving disputes and distributing justice, a society would be described as under the rule of law. “[The Rule of Law] meant that the respective heads of each body would be bound by the law which they themselves had enacted; they could change it lawfully, but until they did so they must obey it – they must rule under law.”[21]
Secondly, the law should be self-justified. According to Max Weber, legal domination is an ideal type better than the other two forms of authorities (charismatic domination and traditional domination). It involves acceptance of rules because they are rules, not for their moral worth or political virtue. In another word, “law is self-justifying”.[22] Both Diecy and Raz’s version of rule of law inherited this self-justifying formal rational conception, and this notion can be regarded as the core reason which makes it possibility to establish rule of law in domestic level, whatever the political ideology and regime it holds.
III. Rule of Law in International Level
A. The Concept of International Rule of Law
On the meaning of international rule of law, Professor Mattias Kumm provided a useful interpretation: “…nations, in their relationships to one another, are to be ruled by law. The addressees of international law, states in particular, should obey the law. They should treat it as authoritative and let it guide and constrain their actions. The international rule of law is realized to the extent states do in fact obey international law.”[23]
I strongly agree with this concept in at least two reasons. In the first place, this definition clearly excludes the influence from the notion of domestic rule of law. I will discuss this soon. In the second place, of the approach of defining the international rule of law, Kumm was not allured by emotional expressions but insisted on a rational positive analysis. “If the international rule of law is equated with the international rule of good law”, he explained his approach gentlemanly, “to explain its meaning is to expound a comprehensive political philosophy.”[24]
B. The Distinctions between International Rule of Law and Domestic Rule of Law
Similar to the domestic rule of law, international rule of law shall be regarded as a formal structure. Whilst the material concept of “rule of good law” can be morally criticized as what I have done above, it, in international level, deserves the criticism with logical reasons. To explain this, I will discuss the distinctions between “international rule of law” and “domestic rule of law” first.
As has mentioned above, the aim of rule of law in domestic level is to avoid the defects of Weber’s “charismatic domination” and “traditional domination” on a society. By Diecy, “in this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.”[25] By Raz, the rule of law is “the government shall be ruled by the law and subject to it.”[26] In another word, domestic rule of law stands on a logical precondition of sovereignty, and its aim is to constrain the powers of authorities. The following definition may reveal this feature clearer:
“[Rule of law is] a system of government in which the acts of agencies and officials of all kinds are subject to the principle of legality, and in which procedures are available to interested persons to test the legality of governmental action and to have an appropriate remedy when the act in question fails to pass the test.”[27]
On the contrary, when we are talking about the term “international rule of law”, we shall remember firstly that no global government should be restrained because this government does not exist. Secondly, it is sovereignty states that are the subjects of international law. Last but not least, the international rule of law is, by its nature, to avoid the power politics as well as the unilateral actions. In a word, the feature of the international rule of law is that it is mainly a requirement of complying with the treaties and covenants by states. What the aim of international rule of law, besides preventing hegemony, should be improve the states do “in fact obey international law”, that is not merely promulgate the domestic law, but also enforce the law to carry out the obligations in treaties.
C. Argument to the fashionable Concept of International Rule of Law
Now we can discuss why, in the international level, the “rule of good law” is illogical. States sign and ratify the conventions and/or treaties only when these documents are in favor of their own interests. “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”[28] At the same time, states will lawfully not comply with any “good law” before ratifying it. So the “rule of good law” becomes a tautology of complying with treaty obligations. More importantly, since the global authority dose not, and should not, exists, the international rule of law does not, and should not, have any implication of “restraining” the action of inexistent government. The “good law” hence loses the objects.
Some one may argue that, in the international level, the uniform norms essentially exist. Human rights law and humanitarian law, for instance, may be good examples. I have to admit that in contemporary discussions, this argument has obtained very strong supports, and the concept of international rule of law, in this context, often be shifted to “a juridical definition of the state and an alternative discourse framed in the universalizing language of human rights”.[29] The traditional notion, that when we are talking about the international rule of law, we are talking a state’s obligations to another state or other states, but not a state’s obligation to its people, seems not fashionable.
However, if we “re-conceptualize the personality” of international law to include “persons” and “peoples”,[30] we will mix up the distinction between domestic rule of law and international rule of law. That is, we are actually discarding the international rule of law when trying to improve some states’ domestic rule of law. Furthermore, this discarding may, if not definitely, pave the way for abusing the de facto imbalanced power in the contemporary world and cause the violation of international rule of law (in the formal rational conception). The following case study on China will make my argument more persuasive.
D. Case Study: Rule of Law in China and China in International Rule of Law
In Article 13 of the Amendment (1999) to the Constitution of the People’s Republic of China, a paragraph was added as follows: "The People’s Republic of China governs the country according to law and makes it a socialist country under rule of law." Together with the other four paragraphs in the same article,[31] Chinese government swears to be an authority “under the rule of law”. Some achievements on rule of law in China can easily be found in English legal publications.[32] Frankly speaking, some essential principles to the rule of law are lying on the paper.[33] There is a long way to the judicial independence, and unlawful governmental activities happen from time to time. Even the notion of rule of law is still looking for the balances with other government philosophies.[34] However, no one would deny that in no more than three decades, China has re-established its legal system from the domination of legal nihilism, and this legal system provides a relatively secure environment, which has been sustaining the rapid development of Chinese economy.
Nevertheless, China dose not obtain a fair evaluation to its significant progress, especially on human rights issues, and an obvious double standard lies in the international community.[35] In my opinion, the confusion of domestic rule of law and international rule of law is a significant cause of the double standard. For attracting investments and sustaining the economic development, China is actually very eager to comply with the international economic laws. Take copyright issues for instance, China not merely made a great development in copyright protection, but also continuously trying to catch the step of the western pace.[36] However, these endeavors often confront the criticism on human rights protection. This has been proven leading to a growing nationalism,[37] which would never be good to Chinese government complying with its international legal obligations.
I do not mean that one should not stress human rights. My argument is: the logical and rational classification of issues respectively in domestic rule of law and international rule of law will cease the unnecessary quarrel and simplify the problems. The double standard to China is a negative example, but it would not be the solely one if the concept of international rule of law kept on sliding to the domestic judicial review to the compliance of international good law.
IV. Conclusion
By revisiting the theories on rule of law and evaluating the formal and material approaches in defining its concept. This essay finds a rational way to clarify the dense fog on the slogan of rule of law between the domestic and international levels. In the domestic level, the rule of law focuses on the legal domination among the social controlling, and it is a corresponding concept to the rule of men and/or rule of authorities; restraining the authorities’ sovereignty power is its main aim. In the international level, the rule of law seeks not restraining the authority since it dose not exist; it turns into restraining hegemony, power politics and unilateralism. The notion of shifting international rule of law as a judicial review of specific governments will make the international rule of law fading away. This conclusion is on a formal rational that can both positively improve the building of domestic rule of law and politically avoid the abuse of “good law” doctrine in international community.
[1] Aristotle, Politics, transl. by Wu Shoupeng, (Beijing: Commercial Press, 1983), pp. 167-168.
[2] See Hayek, F. A. The Constitution of Liberty, (Chicago: University of Chicago Press, 1960), p. 164-175
[3] J. W. Placidus, Literatur der Staatslehre. Ein Versuch. Straxburg 1798, S. 10, Quoted from Zheng Yongliu, Four Chapters on Rule of Law (Chinese: FA ZHI SI ZHANG, Beijing: CUPL Press, 2002), p. 83.
[4] Zheng Yongliu, Four Chapters on Rule of Law (Chinese: FA ZHI SI ZHANG, Beijing: CUPL Press, 2002), p. 48.
[5] A. V. Dicey, Introduction of the Law of the Constitution, (10th edn, London: Macmillan, 1959), p. 406.
[6] Ibid., 202-203.
[7] Ibid., p. 188.
[8] Ibid., p. 407, 408.
[9] I. Jennings, The Law and the Constitution, 5th edn., (London: English language Book, 1979), p. 58.
[10] Ibid. p. 57. On the rule of law, Jennings criticized Dicey in various aspects, but since the topic is on the CONCEPT of the rule of law, I will not scan all those notions here.
[11] Joseph Raz, The Rule of Law and Its Virtues, In Readings in the Philosophy of Law, 3th edn., edited by John Arthur & William H. Shaw (Princeton Hall, 2001), p. 49.
[12] Ibid.
[13] Ibid., p. 50. In China, perhaps because of its authority tradition, the slogan of rule of law is often questioned by “how can a society solely be governed by law without men?” Raz’s illumination may be a perfect answer of the questions.
[14] Ibid.
[15] They are: (1) all laws should be prospective, open and clear; (2) laws should be relatively stable; (3) the making of particular laws should be guided by open stable, clear, and general rules; (4) the independence of the judiciary must be guaranteed; (5) the principles of natural justice must be observed; the courts should have review powers over the implementation of the other principles; (7) the courts should be easily accessible; (8) the discretion of the crime-preventing agencies should not be allowed to pervert the law, and so forth. See Ibid., pp. 50-52.
[16] I have stressed this “table” in another essay on the debate of the separation of law and morality. See Dong Hao, It is not as Distinct as It Seems: A Note on the Debates on the Separation of Law and Morals in the Contemporary World, available at http://www.blawgdog.com/article.asp?id=215, visited on 25 July 2006.
[17] Ibid., p. 49.
[18] George P. Fletcher, Basic Concepts of Legal Thought, (Oxford: Oxford University Press, 1996), p. 11-12.
[19] Zheng Yongliu, Four Chapters on Rule of Law (Chinese: FA ZHI SI ZHANG, Beijing: CUPL Press, 2002), p. 48.
[20] Here, I use the word “law” mostly in the positive context.
[21] Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), p. 292.
[22] pp. 154-156.
[23] Mattias Kumm, International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model, 44 Va. J. Int’l L. 19, at 22.
[24] Ibid.
[25] A. V. Dicey, Introduction of the Law of the Constitution, (10th edn, London: Macmillan, 1959), p. 188.
[26] Goseph Raz, The Rule of Law and Its Virtues, In Readings in the Philosophy of Law, 3th edn., edited by John Arthur & William H. Shaw (Princeton Hall, 2001), p. 49.
[27] John Henry Merry man, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2d edn. (Stanford: Stanford University Press, 1985), pp. 140-141.
[28] Louis Henkin, How Nations Behave (2nd edn., Columbia University Press, 1979), p. 47.
[29] Ruti G. Teitel, Humanity’s Law: Rule of Law for the New Global Politics, 35 Cornell Int’l L.J. 355, at 362.
[30] Ibid.
[31] See Article Five of the Constitution of People’s Republic of China.
[32] Such as Eric W. orts, The Rule of Law in China, 34 Vand. J. Transnat’l L. 43; Benedict Shee, Fundamentally Conflicting Views of the Rule of Law in China and the West & Implications for Commercial Disputes, 26 NW. J. INT’L L. & BUS. 225; and Yahong Li, Pushing for Greater Protection: the Trend toward Greater Protection of Intellectual Property in the Chinese Softeware Industry and the Implicatoins for Rule of Law in China, 23 U. Pa. J. Int’l Econ. L. 637, and so forth.
[33] Eric W. orts, The Rule of Law in China, 34 Vand. J. Transnat’l L. 43.
[34] A newest example is the advocating of “rule by morality” (Yi De Zhi Guo) by Chinese Communist Party. See The Propounding of Rule by Law Theory (Chinese), available at http://news.xinhuanet.com/ziliao/2003-01/20/content_698038.htm, visited on 22 July 2006.
[35] Randall Peerenboom, Assessing Human Rights in China: Why the Double Standard? 38 Cornell Int’l L.J. 71.
[36] For example, China enacted an ordinance to protect the copyrights in the context of Internet this July, which makes China reach the standards of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, even before joining them.
[37] Ibid
[2] See Hayek, F. A. The Constitution of Liberty, (Chicago: University of Chicago Press, 1960), p. 164-175
[3] J. W. Placidus, Literatur der Staatslehre. Ein Versuch. Straxburg 1798, S. 10, Quoted from Zheng Yongliu, Four Chapters on Rule of Law (Chinese: FA ZHI SI ZHANG, Beijing: CUPL Press, 2002), p. 83.
[4] Zheng Yongliu, Four Chapters on Rule of Law (Chinese: FA ZHI SI ZHANG, Beijing: CUPL Press, 2002), p. 48.
[5] A. V. Dicey, Introduction of the Law of the Constitution, (10th edn, London: Macmillan, 1959), p. 406.
[6] Ibid., 202-203.
[7] Ibid., p. 188.
[8] Ibid., p. 407, 408.
[9] I. Jennings, The Law and the Constitution, 5th edn., (London: English language Book, 1979), p. 58.
[10] Ibid. p. 57. On the rule of law, Jennings criticized Dicey in various aspects, but since the topic is on the CONCEPT of the rule of law, I will not scan all those notions here.
[11] Joseph Raz, The Rule of Law and Its Virtues, In Readings in the Philosophy of Law, 3th edn., edited by John Arthur & William H. Shaw (Princeton Hall, 2001), p. 49.
[12] Ibid.
[13] Ibid., p. 50. In China, perhaps because of its authority tradition, the slogan of rule of law is often questioned by “how can a society solely be governed by law without men?” Raz’s illumination may be a perfect answer of the questions.
[14] Ibid.
[15] They are: (1) all laws should be prospective, open and clear; (2) laws should be relatively stable; (3) the making of particular laws should be guided by open stable, clear, and general rules; (4) the independence of the judiciary must be guaranteed; (5) the principles of natural justice must be observed; the courts should have review powers over the implementation of the other principles; (7) the courts should be easily accessible; (8) the discretion of the crime-preventing agencies should not be allowed to pervert the law, and so forth. See Ibid., pp. 50-52.
[16] I have stressed this “table” in another essay on the debate of the separation of law and morality. See Dong Hao, It is not as Distinct as It Seems: A Note on the Debates on the Separation of Law and Morals in the Contemporary World, available at http://www.blawgdog.com/article.asp?id=215, visited on 25 July 2006.
[17] Ibid., p. 49.
[18] George P. Fletcher, Basic Concepts of Legal Thought, (Oxford: Oxford University Press, 1996), p. 11-12.
[19] Zheng Yongliu, Four Chapters on Rule of Law (Chinese: FA ZHI SI ZHANG, Beijing: CUPL Press, 2002), p. 48.
[20] Here, I use the word “law” mostly in the positive context.
[21] Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), p. 292.
[22] pp. 154-156.
[23] Mattias Kumm, International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model, 44 Va. J. Int’l L. 19, at 22.
[24] Ibid.
[25] A. V. Dicey, Introduction of the Law of the Constitution, (10th edn, London: Macmillan, 1959), p. 188.
[26] Goseph Raz, The Rule of Law and Its Virtues, In Readings in the Philosophy of Law, 3th edn., edited by John Arthur & William H. Shaw (Princeton Hall, 2001), p. 49.
[27] John Henry Merry man, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2d edn. (Stanford: Stanford University Press, 1985), pp. 140-141.
[28] Louis Henkin, How Nations Behave (2nd edn., Columbia University Press, 1979), p. 47.
[29] Ruti G. Teitel, Humanity’s Law: Rule of Law for the New Global Politics, 35 Cornell Int’l L.J. 355, at 362.
[30] Ibid.
[31] See Article Five of the Constitution of People’s Republic of China.
[32] Such as Eric W. orts, The Rule of Law in China, 34 Vand. J. Transnat’l L. 43; Benedict Shee, Fundamentally Conflicting Views of the Rule of Law in China and the West & Implications for Commercial Disputes, 26 NW. J. INT’L L. & BUS. 225; and Yahong Li, Pushing for Greater Protection: the Trend toward Greater Protection of Intellectual Property in the Chinese Softeware Industry and the Implicatoins for Rule of Law in China, 23 U. Pa. J. Int’l Econ. L. 637, and so forth.
[33] Eric W. orts, The Rule of Law in China, 34 Vand. J. Transnat’l L. 43.
[34] A newest example is the advocating of “rule by morality” (Yi De Zhi Guo) by Chinese Communist Party. See The Propounding of Rule by Law Theory (Chinese), available at http://news.xinhuanet.com/ziliao/2003-01/20/content_698038.htm, visited on 22 July 2006.
[35] Randall Peerenboom, Assessing Human Rights in China: Why the Double Standard? 38 Cornell Int’l L.J. 71.
[36] For example, China enacted an ordinance to protect the copyrights in the context of Internet this July, which makes China reach the standards of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, even before joining them.
[37] Ibid