Unlike problem questions which require you to apply the law to fact patterns, law essays require you to resolve a legal controversy of some kind. This can sometimes seem a daunting and impenetrable task. However, by understanding what is required of you, and following some basic principles to understand the question, formulate your arguments and structure your answer, you will soon find that excellent marks are in your grasp.
An outstanding law essay requires:
A clear and well-defended thesis, which requires
Clearly identified legal authority, which requires
Sophisticated legal arguments, which require
Critical evaluation and analysis, which require
Clear and precise organisation, which requires
Simple, concise and direct language
This guide will gives practical guidance on how to achieve these things.
While the writing of a law essay requires the same skills as a problem question, those skills are used and evidenced in a slightly different way. This guide will demonstrate the skills that are needed to translate your legal knowledge into a first class essay.
Very few law schools take the time to teach their students how to write legal essays, and even fewer do it well. However, good essay technique is fundamental to achieving a good grade on a dissertation, term paper or exam answer. While good essay technique cannot be used as a substitute for solid legal understanding and knowledge, understanding the law is not itself enough to guarantee a good performance in essays. That understanding must be applied in a concise, structured and critical manner in order to achieve a top grade. This guide will show you how to achieve this goal.
1. What all good essays have in common – some basic points
All law schools have explicit criteria regarding what constitutes a first class essay, an upper second, a lower second, and so on, and these may differ superficially However, there is an overwhelming consensus regarding what is required to achieve a high mark in a law essay, whether as an assignment or an exam.
All first class essays will include:
- Attention to detail when considering the precise requirements of the question. A good essay will not talk generically about a subject, but will seek to address the precise controversy raised in the wording of the question.
- An in-depth understanding and knowledge of the relevant law, accurately described.
- Clear structure and a stated and well-defended thesis (argument).
- A demonstration of the wider context within which the law exists. This may include the relevant policy considerations, the historical development of the law and its genesis, and the academic controversies which exist regarding this precise area of the law
- An excellent critical approach in answering the question posed, involving analysis and evaluation, as well as accurate description of the ‘black letter law’. The best candidates demonstrate creativity and flair in their answers, and engage in lateral thinking.
- The inclusion of less obvious points of law or analysis.
- Appropriate use of sources, supporting arguments and ideas.
- Correct and appropriate use of quotations, paraphrasing and citation.
- The consideration of opposing arguments and sources.
- The exclusion of irrelevant law and arguments.
- Excellent style, concise writing, and flawless grammar and language. Poor style will only hinder the marker from identifying your arguments. The key to good style can be summed up in three words: Keep it simple!
Marks will fall into the second class, and then third class, or lower, as these principles are departed from. The less you abide by them, the lower your mark will be.
You will notice that almost all of the points are connected to organisation, technique, style and organisation in some way or another. Knowledge of the law is of course paramount, but it will not be enough alone. In order to score a high mark for any essay you must use good technique and structure. It does not matter how well you think you know the law, a poor essay technique will mean a lower grade than you deserve, perhaps considerably lower.
When you write an essay, compare it to the list of criteria listed above and consider how many of the requirements you have met. You will be surprised how accurately. In the following sections, you will find detailed guidelines on how to improve different aspects of technique, helping you to perfect your essay-writing skills.
2. Common pitfalls – What to avoid
There are some very common mistakes in terms of essay-writing style that can be pointed out immediately. You should always try avoid these:
- Students often write in a casual, informal or insufficiently academic style. ‘I don’t think that he is right’ is poor style in a law essay. ‘The author’s argument is unconvincing [for the following reasons...]‘ is far more appropriate.
- Colloquialisms, slang and spoken abbreviations should always be avoided. ‘Does not’ instead of ‘doesn’t’.
- Make sure that you write in full prose. This means writing in full sentences, in paragraphs of appropriate lengths (not to long, not to short – just enough for your point to be made). Do not write in incomplete sentences or in lists or bullet points. As you will see, writing in complete prose allows you to engage in evaluation and analysis, a key component of a good essay.
- Students do not cite cases or legislation correctly. Law schools have different rules regarding this matter, and those rules are usually different for dissertations, shorter essays and exams. Make sure you learn the rules and apply them. There is no reason to lose marks for something so silly.
- Ensure that you credit your sources. This is the number one rule in legal argument, and in legal essay writing. Without a source, legal argument is almost meaningless.
- Similarly, do not simply cite sources for no reason. This is remarkably common. Know why are citing a case, for instance.
- Do not forget to respect the formatting requirements that your law school dictates.
3. What is an essay asking you to do? The importance of having a thesis.
Essay titles will vary greatly, from long quotes to short, sharp questions. In essence, however, all essays will require you to ‘discuss’ some legal controversy or other. Indeed, many essay questions will include the instruction ‘discuss’. What that thing may be will vary, and will be considered below. However, what many students misunderstand or ignore is the need to resolve the controversy.
Some students live in the mistaken belief that you must simply ‘take a position’ or ‘take sides’ in the controversy that you are discussing. While this may be a tactical device that you may need to adopt in an emergency, it is not a healthy practice in general. What an essay must do is propose, discuss and prove a thesis, that is to say a way to resolve, to answer the question that has been. What is important is not that you do not consider other potential arguments, but rather that you consider and disprove them. Very few students seem to appreciate the need to prove their arguments, or even to have an argument in the first place. An essay without a thesis is very unlikely to achieve a high grade, and will prove far more difficult to answer, structure and write.
Whereas problem questions will ask you to resolve many separate legal problems, an essay will ask you to resolve perhaps one or two. As such, the entire essay must be dedicated to the resolution of this issue. While in problem questions, the order of the question will be a failsafe guide in terms of structuring your answer, essays are far more difficult to structure and write. Because they leave more freedom to the student, you must take far more care over your thesis, arguments and structure. However, this freedom also means that a good essay will stand out more easily than a problem question, where all satisfactory answers will resemble each other.
While a good essay requires detailed argumentation and legal analysis, its thesis should be capable of being summed up in a sentence or two – indeed these may constitute your conclusion. Your essay should prove this conclusion, and disprove competing views.
In order to do this you will need to be able do several things: Understand what different types of essay are asking you to do, understand how to engage in legal analysis and answer the question, and how to structure this legal analysis into a coherent and successful structure. The following sections should help you in understanding how to do these things.
4. Working out what is being asked
The wording of essay questions can often seems obtuse. Have a look at an exam paper of a law module that you have not yet studied; at least some of the questions will seem complete enigmas, alluding subtly to controversies and issues that you cannot possibly hope to identify, let alone resolve. This may also seem to case with essay questions on subjects that you do know well ad ave revised thoroughly. Lots of candidates in exams are put off answering essay questions because they seem to ‘vague’ or ‘obtuse’. However, these are often the questions that best allow candidates to show off their legal knowledge analysis. What you need to be able to do is identify what the question is asking you to do.
Firstly, almost all questions will be alluding to a controversy that you are familiar with. These questions are asking you to discuss and resolve this controversy through legal analysis, proving your thesis, as discussed in section 3. Try and identify the controversy that the question is alluding to. Sometimes the question will be a quote which rather than ask a question, actually proposes a answer to a question.
Take, for instance, the question:
“The TOLATA does not sufficiently displace English land law’s obsession with the commodity value of land.” (Joe Bloggs). Discuss.
What is this question asking you to do? How do you go about ‘discussing’ this (fictional, but very realistic) quotation? The first rule is to understand that such quotations are in fact a potential conclusion to a question. In order to ‘discuss’ it, you must first identify the question that it answers and understand the arguments that could lead to this conclusion. You are in essence being asked, not to consider the quotation as such, but to reconsider the question that it is asking, and as a consequence, consider whether this is the correct answer to that question. As such, you need to consider counter-arguments to the conclusion that is hinted at in the quotation. These arguments will usually be familiar. The same controversies always arise in the same modules, even across different questions. What is being asked of you is to apply that particular aspect of the law to that controversy.
So, what is being asked in this question? The broad controversy in land law is whether property law should protect the valuable use of land, or whether it should protect the commercial value. In the case of TOLATA it is whether the numerous rights that are given to beneficiaries (right to occupy etc) are sufficient, or whether they should be extended to give more rights to people who live on land. The first step in answering this question is to understand that this is what is being asked of you – you must resolve this dispute with a thesis (your answer) proved by legal argument and analysis in a good structure.
The same controversies arise again and again in law essays, with merely different emphasis on where to concentrate the focus of your answer. Just as problems questions will always focus on the ‘margins’ of the law – the areas where the law is less clear, essay questions will (by and large) focus on areas where there is general disagreement. Understanding where these areas lie will help you identify what a question is asking. While essay questions may seem complex or difficult to understand, this is not usually their point. Unlike in problem questions, where there will often be red herrings, or tricks to knock you off track and try and catch you out, essay questions do not generally do this – they are looking to inspire your answer by being controversial and thought-provoking. A word of advice though – just as you should not merely ‘take a side’ in a controversy, do not think, as some students do, that the best course is to merely disagree with the quotation or essay’s wording. You should give an answer which considers the argument fully and resolves it in a clear thesis.
5. Different types of essays
While essay questions can take an infinite number of forms, they can generally be grouped into three types, each of which requires a slightly different form of answer. However, they all still require a thesis, analysis and a good structure,
A. Legal theory
Questions on legal theory are asking you to discuss why the law takes the form and shape that it does, and to discuss its merits. Lots of candidates perform poorly in essays because they fail to understand this aspect of essay-writing. They do not require you to merely discuss what the law is, but also WHY it is like this and/or whether it should be like this. This is probably the most common form of essay question.
Here are some examples from different subjects:
- “The rules of offer and acceptance are no longer suitable for modern transactions.” Discuss.
- Could Community law have achieved any effet utile without the mechanism of direct effect?
- Tort law has no coherent uniting thread. Discuss.
- The Separation of Powers has no place in the UK Constitution. Discuss.
B. Legal reform
Legal reform questions can take two principal forms: those questions which ask you to evaluate a recent reform of the law, and those which ask you to consider whether a certain area of law should be reformed. These questions require you to engage in the same process as legal theory questions but put greater emphasis on the comparison between two different legal solutions to a problem (either new and old, or current and future). To answer these questions you need be familiar with the problems with the past (or current) law, and the ability of the new (or proposed law) at resolving these problems. Identifying these questions is relatively simple – they will draw attention to a recent change in the law (such as legislation or a landmark case) or ask you to suggest such a change.
Here are some examples:
- The Contracts (Rights of Third Parties) Act 1999 has not resolved the problems it set out to resolve. Discuss.
- The decision of the ECJ in Viking has resolved the tension between free movement and freedom of association in a satisfactory manner. Discuss.
- How should the law of manslaughter be reformed?
- The law regarding charitable trusts is now settled and satisfactory. Discuss.
C. Legal history
Legal history questions are asking you to pace more emphasis on a gradual change in a certain area. They still require you to consider the issues of legal theory and legal reform, but place more emphasis on the historical changes that have occurred. In some ways, legal history questions may seem more appealing, and they are easy to structure (chronologically) and seem to involve less ‘risk’ if you know the cases and legislation well. This may be true to a certain extent, in order to achieve a second class grade at least. However, legal history questions which achieve a high mark still require legal analysis, a thesis and a good structure. A list of cases or statutes can only get you so far. You still need to be creative in your answers, perhaps more so, as questions like these will often generate many similar answers for the marker to go through. If you look at the wording carefully there are usually not only asking you to list facts or trends but also critically evaluate those trends, just as with legal theory questions.
Some examples of legal history essays:
- The requirements for locus standi in UK courts have become too relaxed over time. Discuss.
- “Legislative reform has pushed land law closer and closer away from a system based on flexibility and fairness. ” (John Doe) Consider this statement using legislation passed since 1925.
- Direct effect is a doctrine which has lost its coherence as it has developed. Discuss with reference to relevant ECJ jurisprudence.
- Has the scope of labour law kept pace with new employment practices?
There is a fourth form of question, which is the purely theoretical legal essay question, which is usually limited to jurisprudence or legal philosophy. This will require you to consider theoretical controversies in a more abstract manner. However, such questions do no depart as far as one would imagine from the principles discussed above, but rather require greater emphasis on the theoretical merits of arguments.
While it is paramount that you are able to identify which kind of question is being asked, it is important not to overstate the difference between them. The difference is one of degree; all three questions still require the same basic tenets of thesis, legal analysis and structure. However, it is important to be able to differentiate between these different kinds of questions. Where the focus is on legal theory an unthinking ‘trotting out’ of the history of a doctrine is wholly inappropriate. Similarly, where the focus is on legal history, you should not simply focus on the most recent reform.
6. Legal Argumentation – Sources
So, you have your thesis, having correctly identified the area that has to be examined and what type of question it is. How do you go about writing your essay? This requires two elements – good legal argumentation and good structure. Here we look at how to engage in legal analysis and evaluation, and in the following part we look at how best to structure those arguments.
Essay questions may seem to be looking for an opinion, and indeed they are on some level. However, they are not looking for opinion of the sort you would find in a casual conversation about politics in a pub, or about last night’s match over lunch. Legal argumentation – analysis – must respect certain principles.
What form does legal argument take? While this guide will give you an excellent overview of how a law student should structure his arguments, the best way to learn is from judgments. Some tutors will insist you read lots of cases, while others will place less emphasis on this. Whatever they say, there is no better way to learn to reason like a lawyer than to read judgments, in particular Supreme Court (formerly the House of Lords) and European Court of Justice cases. This will also help immensely with answering problem questions. Another great way of understanding how to structure critical legal thinking is to read academic articles, beyond your simple text-book reading. These articles will often appear on your reading list as extra reading. Reading them will give you concrete examples of the kind of how to resolve the controversies that law essays require you t resolve.
Reading cases and academic articles will help you in a more fundamental manner when it comes to legal argument however. They are examples of the most crucial component in legal analysis – sources! When identifying, evaluating, analysing or criticising the law, the most important thing is the source of anything you say. In law what determines an argument’s validity is not primarily its logic or its attractiveness but its source. In essence, just as important as what is said is who said it. This is the principle of authority
There are fundamentally two kinds of authority in legal argument: Binding authorities and unbinding authorities. Both are fundamental to a good argument in a legal essay.
A. Binding authorities.
When you identify a legal principle you must identify its source. Binding authorities tell you what the law is: these almost exclusively stem from either case law or legislation. When you try and explain the current (or past) state of law, you must be clear in your attributing any principle of law to a source. A principle without a source has no validity at all. Similarly, however, you must not cite sources for no reason, or simply cite sources at random. Principles and sources must only be used where they are relevant.
Where considering the law in a particular area, you will need to identify the general rule, and, where applicable, the exceptions to that rule. Without sources this is impossible. The basic rule is: What is the principle? What is the source?
While in problem questions most of your answer will be dedicated to this task and applying in to the facts of the question, in essays the identification of the correct principles and sources will usually require less time and will cover fewer principles. This is because more emphasis should be placed on the consideration of the second kind of legal authority: non-binding, or persuasive authorities.
B. Persuasive authorities
These are crucially important in questions of legal theory and legal reform, and play a very important role in legal history essays. At least some persuasive authorities must be considered in a law essay to achieve a good grade.
- ‘Public Policy’. Public policy is the broadest form of non-binging authority, and is often poorly used by students in law essays. Public policy covers all forms of political and moral argument which can be applied to the law. It can be used to criticise or praise law or legal reform, and used to propose new laws or explain historical changes in the law. Public policy arguments must be used precisely however. Firstly, they must be identified correctly. You cannot simply say ‘this law is unfair for public policy reasons’. You must identify and explain those reasons, and then further explain how they apply to this area of law. Also, you must always consider the opposing view. If the use of constructive trusts in the context of the family home is unfair because it penalises women, what is the argument that justifies the approach? Only if you consider such counter-arguments will your use of public policy be successul.
- Legal commentary. All good law essays contain the principle and source of legal commentaries, that is to say articles and case notes written by academics. The identification of an academic’s argument and its citation, and it’s application to your current essay is a great way of increasing your mark, especially if you engage critically with the commentary, considering its validity, either on your own or by making use of other academics’ views. Remember: if you use someone’s ideas, mention their name, and the source. Without the name it is at best aimless and at worst plagiarism; with the name is great use of persuasive authority.
- Dissenting judgments. The use of dissenting judgments is a tell-tale sign of a top-class student. You can use them to give extra weight to your arguments, and serve the purpose of demonstrating to your marker that you have read cases.
- Legislative papers/Proposals for reform. Green and white papers, draft Bills of legislation, Law Commission reports and Commission proposals are all excellent sources of non-binding authority. They are of particular use in legal reform questions.
- International law. Because of the structure of English law international law is not immediately incorporated into our legal system. As such, it is a non-binding authority which can be used to support a claim in legal theory essays.
- Law from other jurisdictions. It is often useful to look at the solution of other jurisdictions where there is a gap in English law, or you have made a case for reform. As such, this form of non-binding source is particularly appropriate for legal reform questions, but can also be used in legal theory questions as a point of comparison. Because of their similarity in structure and use of similar concepts, other common law systems are most commonly used, but you should not feel limited to those systems if you think a different legal system offers a better solution to a legal problem.
A good essay will contain the correct mix of binding and persuasive authorities. It is impossible to write an outstanding essay without including both. One is not enough.
Some more tips on using authorities:
- Always obey the rules at your law school regarded correct citations.
- Use quotes and paraphrasing where appropriate. Do not make the mistake of including long quotes, especially from statutes, where concise paraphrasing would be more appropriate. However, a brief quote from an academic or judgment, when it makes a good point succinctly is often very impressive.
An essay question will give you strong clues regarding both which types of binding and persuasive authority you should focus on. While it is important to always use sources, you must always ensure that these sources are relevant to the question that has been asked. Using the wrong sources will not help you answer the question, and will no get you a better mark. Remember what we went through regarding identifying the content of the question, and the type of question that is being asked. Where a source is not helpful in discussing your thesis in response to this question, it should not be included. Do not fall into the trap of trying to show that you know everything about the law.
Structure is a crucial element in all essays; a good essay must have a good structure. How do you go about structuring an essay? There are no cut-and-fast rules regarding how to structure a law essay, but there are several principles which you should always respect. Remember what we discussed in part 3 regarding the importance of having a thesis. This thesis should provide you with a ready-made structure for your essay – you must structure your essay so that it supports your thesis. Those essays which lack structure are almost always those which are lacking a thesis. Structuring an essay without a thesis is almost impossible. Writing an easy without a thesis or structure is almost impossible, and will produce a painful read for the marker.
Many students do not appreciate the fact that they must organise their legal argumentation so as to support their thesis. Their introduction should inform the reader of the thesis, the body of the essay should examine the various arguments for and against this thesis in a clear and precise manner (see section 6) and these should lead logically to your conclusion. The ‘substance’ of your essay (your legal argumentation) should come in the middle paragraphs.
There are several ways of structuring an essay.
- A. The five paragraph essay
Perhaps the best way of structuring an argument is the classic ‘five paragraph’ structure. There is nothing sacred about there being five paragraphs – there may well be more – but this basic structure is a good basis for any essay, whatever the thesis. It can be illustrated graphically like this:
As you can see from the diagram, this kind of essay involved an introduction where you explain the thesis that you will defend, three paragraphs which critically assess (using the correct forms of legal argumentation discussed in the previous section) three supporting arguments for your thesis, and your conclusion sums up the findings of these paragraphs. This will ensure that you have a concise and focussed analysis of relevant factors, without straying from your overall thesis.
- B. The ‘French’ method: Thesis, antithesis, synthesis.
This structure might be more suited to more focused essay questions where you need to consider fewer issues but in greater detail.
As you can see, the introduction and conclusion fulfil the same role as in the five paragraph essay, however the middle ‘substantive’ paragraphs consider first a the arguments for a particular proposition, followed by a paragraph against that proposition, with a third paragraph which seeks to resolve the tensions between the first two paragraphs. This is a difficult essay structure to pull off successfully and candidates may often lose their way more easily as compared to the more focused five paragraph structure. However, it is possible to write an excellent essay using this structure.
- C. The historical overview essay
As the name suggest, this form of essay is best suited to those questions which fall into the legal history category considered in part 5. It could be illustrated like this:
In a historical structure, the paragraphs are used to separate separate strands or periods in legal history. While this form of essay might seem to be very appealing in terms of easy structure, beware! It is more difficult (but not impossible) to include a strong thesis and advanced legal argument involving persuasive authority rather than just a list of binding authorities. You still need to include this thesis in your introduction, and your conclusion.
Some more general points.
There are no rules regarding essay structure, and several more basic structures could be listed here. Feel free to be more creative with structure, but bear in mind that you should only change the structure of an essay to the extent that it helps to back up your thesis.
Some more general points of advice include:
- Avoid long, scene-setting introductions or over long opening paragraphs
- Do not spend too long on one aspect of your middle paragraphs. Give each point more or less equal weight.
- Do not, as a general rule, introduce new points in your conclusion (with the exception of a proposal for reform in legal theory or legal history essays). While a twist may occasionally make for a very entertaining essay, generally speaking your conclusion should simply reflect what you have proven in your substantive paragraphs.
8. Be creative
This guide, if followed, will certainly improve your essays immeasurable, however it cannot teach you the most effective way to achieve a good thesis and exceptional legal analysis to prove that thesis: Creativity. You must be prepared to think laterally and creatively – use all your intellectual flair – to apply to legal knowledge to the question your are answering. In law essays, you will often have to consider issues from different parts of the syllabus, or even outside the syllabus in the case of public policy arguments. However, this does not mean that ‘anything goes’ – far from it. A good essay will be rigourous in its legal argumentation and use of authority, but creative and original in its thesis.
"Rule of Law" redirects here. For other uses, see Rule of Law (disambiguation).
Not to be confused with rule according to higher law.
The rule of law is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials. The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings.John Locke wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon liberty. The "rule of law" was further popularized in the 19th century by British jurist A. V. Dicey. However the principle, if not the phrase, was recognized by ancient sages and philosophers, such as Aristotle, who wrote "It is more proper that law should govern than any one of the citizens".
Rule of law implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges. In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.
Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey, development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India, and Rome.
In the West, the ancient Greeks initially regarded the best form of government as rule by the best men.Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law. Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, 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.
The Roman statesman Cicero is often cited as saying, roughly: "We are all servants of the laws in order to 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.
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.
There has recently been an effort to reevaluate the influence of the Bible on Western constitutional law. In the Old Testament, the book of Deuteronomy imposes certain restrictions on the king, regarding such matters as the numbers of wives he might take and of horses he might acquire (for his own use). According to Professor Bernard M. Levinson, "This legislation was so utopian in its own time that it seems never to have been implemented...." The Deuteronomic social vision may have influenced opponents of the divine right of kings, including Bishop John Ponet in sixteenth-century England.
In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official could claim to be above the law, not even the caliph. However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.
Alfred the Great, Anglo-Saxon king in the 9th century, reformed the law of his kingdom and assembled a law code (the Doom Book) which he grounded on biblical commandments. He held that the same law had to be applied to all persons, whether rich or poor, friends or enemies. This was likely inspired by Leviticus 19:15: "You shall do no iniquity in judgment. You shall not favor the wretched and you shall not defer to the rich. In righteousness you are to judge your fellow."
In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates back under the rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes. This foundation for a constitution was carried into the United States Constitution.
In 1481, during the reign of Ferdinand II of Aragon, the Constitució de l'Observança was approved by the General Court of Catalonia, establishing the submission of royal power (included its officers) to the laws of the Principality of Catalonia.
Early modern period
See also: Rechtsstaat
The first known use of this English phrase occurred around AD 1500. Another 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....
In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions (according to his own report) "that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, 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.)."
Among the first modern authors to use the term and give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title, Latin for "the law is king", subverts the traditional formulation rex lex ("the king is law").James Harrington wrote in Oceana (1656), drawing principally on Aristotle’s Politics, that among forms of government an “Empire of Laws, and not of Men” was preferable to an “Empire of Men, and not of Laws”.
John Locke also discussed this issue in his Second Treatise of Government (1690):
The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.
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).
In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, 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."
The influence of Britain, France and the United States contributed to spreading the principle of the rule of law to other countries around the world.
Meaning and categorization of interpretations
The Oxford English Dictionary has defined "rule of law" this way:
The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.
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, for example by divine right.
Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion". Among modern legal theorists, one finds that at least two principal conceptions of the rule of law can be identified: a formalist or "thin" definition, and a substantive or "thick" definition; one occasionally encounters a third "functional" conception. 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.
Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared (prohibitions or exigencies), with prospective application (punishments or consequences tied to a given prohibition or exigency), and possess the characteristics of generality (usually meaning consistency and comprehensibility), equality (that is, applied equally throughout all society), and certainty (that is, certainty of application for a given situation), 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. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. Still, there are other views as well. Some believe that democracy is part of the rule of law.
The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law. This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights.
The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.
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." 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". Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.
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."
Status in various jurisdictions
The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. Research, like the Worldwide Governance Indicators, defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map below. A government based on the rule of law can be called a "nomocracy", from the Greeknomos (law) and kratos (power or rule).
The preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms says "the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law".
In France and Germany the concepts of rule of law (Etat de droit and Rechtsstaat respectively) are analogous to the principles of constitutional supremacy and protection of fundamental rights from public authorities (see public law), particularly the legislature. France was one of the early pioneers of the ideas of the rule of law. The German interpretation is more "rigid" but similar to that of France and the United Kingdom.
Finland's constitution explicitly requires rule of law by stipulating that "the exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed."
Main article: Rule of law in the United Kingdom
In the United Kingdom the rule of law is a long-standing principle of the way the country is governed, dating from Magna Carta in 1215 and the Bill of Rights 1689. In the 19th century, A. V. Dicey, a constitutional scholar and lawyer, wrote of the twin pillars of the British constitution in his classic work Introduction to the Study of the Law of the Constitution (1885); these two pillars are the rule of law and parliamentary sovereignty.
All government officers of the United States, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion, and the executive branch also has various discretionary powers including prosecutorial discretion.
Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law," and if so, which one. For example, John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria," and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.
Some modern scholars contend that the rule of law has been corroded during the past century by the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound. For example, Brian Tamanaha asserts: "The rule of law is a centuries-old ideal, but the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries."
Others argue that the rule of law has survived but was transformed to allow for the exercise of discretion by administrators. For much of American history, the dominant notion of the rule of law, in this setting, has been some version of A. V. Dicey's: "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land." That is, individuals should be able to challenge an administrative order by bringing suit in a court of general jurisdiction. As the dockets of worker compensation commissions, public utility commissions and other agencies burgeoned, it soon became apparent that letting judges decide for themselves all the facts in a dispute (such as the extent of an injury in a worker's compensation case) would overwhelm the courts and destroy the advantages of specialization that led to the creation of administrative agencies in the first place. Even Charles Evans Hughes, a Chief Justice of the United States, believed "you must have administration, and you must have administration by administrative officers." By 1941, a compromise had emerged. If administrators adopted procedures that more-or-less tracked "the ordinary legal manner" of the courts, further review of the facts by "the ordinary Courts of the land" was unnecessary. That is, if you had your "day in commission," the rule of law did not require a further "day in court." Thus Dicey's rule of law was recast into a purely procedural form.
James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course." Chief Justice John Marshall (joined by Justice Joseph Story) took a similar position in 1827: "When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law."
East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism, which advocated strict adherence to law. The influence of one school of thought over the other has varied throughout the centuries. One study indicates that throughout East Asia, only South Korea, Singapore, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent:
Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party ... That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade?
In countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.
In Thailand, a kingdom that has had a constitution since the initial attempt to overthrow the absolute monarchy system in 1932, the rule of law has been more of a principle than actual practice. Ancient prejudices and political bias have been present in the three branches of government with each of their foundings, and justice has been processed formally according to the law but in fact more closely aligned with royalist principles that are still advocated in the 21st century. In November 2013, Thailand faced still further threats to the rule of law when the executive branch rejected a supreme court decision over how to select senators.
In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges."
Japan had centuries of tradition prior to World War II, during which there were laws, but they did not provide a central organizing principle for society, and they did not constrain the powers of government (Boadi, 2001). As the 21st century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.
Various organizations are involved in promoting the rule of law.
The Council of Europe
The Statute of the Council of Europe characterizes the rule of law as one of the core principles which the establishment of the organization based on. The paragraph 3 of the preamble of the Statute of the Council of Europe states: "Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy." The Statute lays the compliance with the rule of law principles as a condition for the European states to be a full member of the organization.
International Commission of Jurists
In 1959, an event took place in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. The event consisted of over 185 judges, lawyers, and law professors from 53 countries. This later became known as the Declaration of Delhi. During the declaration they declared what the rule of law implied. They included certain rights and freedoms, an independent judiciary and social, economic and cultural conditions conducive to human dignity. The one aspect not included in The Declaration of Delhi, was for rule of law requiring legislative power to be subject to judicial review.
The Secretary-General of the United Nations defines the rule of law as:
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.
The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions. The Security Council has held a number of thematic debates on the rule of law, and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security, children in armed conflict, and the protection of civilians in armed conflict. The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda. The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights education.
International Bar Association
The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.
World Justice Project
As used by the World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld:
1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property;
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law—such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice.
The International Development Law Organization (IDLO)
The International Development Law Organization (IDLO) is an intergovernmental organization with a joint focus on the promotion of rule of law and development. It works to empower people and communities to claim their rights, and provides governments with the know-how to realize them. It supports emerging economies and middle-income countries to strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity. It is the only intergovernmental organization with an exclusive mandate to promote the rule of law and has experience working in more than 170 countries around the world.
The International Development Law Organization has a holistic definition of the rule of law:
More than a matter of due process, the rule of law is an enabler of justice and development. The three notions are interdependent; when realized, they are mutually reinforcing. For IDLO, as much as a question of laws and procedure, the rule of law is a culture and daily practice. It is inseparable from equality, from access to justice and education, from access to health and the protection of the most vulnerable. It is crucial for the viability of communities and nations, and for the environment that sustains them.
IDLO is headquartered in Rome and has a branch office in The Hague and has Permanent Observer Status at the United Nations General Assembly in New York City.
The International Network to Promote the Rule of Law (INPROL)
The International Network to Promote the Rule of Law (INPROL) is a network of over 3,000 law practitioners from 120 countries and 300 organizations working on rule of law issues in post-conflict and developing countries from a policy, practice and research perspective. INPROL is based at the US Institute of Peace (USIP) in partnership with the US Department of State Bureau of International Narcotics and Law Enforcement, the Organization for Security and Cooperation in Europe (OSCE) Strategic Police Matters Unit, the Center of Excellence for Police Stability Unit, and William and Marry School of Law in the United States. Its affiliate organizations include the United Nations Office on Drugs and Crime, Folke Bernadotte Academy, International Bar Association, International Association of Chiefs of Police, International Association of Women Police, International Corrections and Prisons Association, International Association for Court Administration, International Security Sector Advisory Team at the Geneva Centre for the Democratic Control of Armed Forces, Worldwide Association of Women Forensic Experts (WAWFE), and International Institute for Law and Human Rights.
INPROL provides an online forum for the exchange of information about best practices. Members may post questions, and expect a response from their fellow rule of law practitioners worldwide on their experiences in addressing rule of law issues.
In relation to economics
One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without an answer to the question: does the rule of law matter for economic development or not?Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors.
The standards of constitutional economics can be used during annual budget process, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor.
The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. To date, the term “rule of law” has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy.
The "rule of law" primarily connotes "protection of property rights." The economist F. A. Hayek analyzed how the Rule of Law might be beneficial to the free market. Hayek proposed that under the Rule of Law individuals would be able to make wise investments and future plans with some confidence in a successful return on investment when he stated: "under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts."
Studies have shown that weak rule of law (for example, discretionary regulatory enforcement) discourages investment. Economists have found, for example, that a rise in discretionary regulatory enforcement caused US firms' to abandon international investments.
In relation to culture
The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments or Roerich Pact is an inter-American treaty. The most important idea of the Roerich Pact is the legal recognition that the defense of cultural objects is more important than the use or destruction of that culture for military purposes, and the protection of culture always has precedence over any military necessity. The Roerich Pact signed on April 15, 1935 by the representatives of 21 American states in the Oval Office of the White House (Washington, DC). It was the first international treaty signed in the Oval Office. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is the first international treaty that focuses on the protection of cultural property in armed conflict. It was signed at The Hague, Netherlands on 14 May 1954 and entered into force on 7 August 1956. As of June 2017, it has been ratified by 128 states.
The rule of law can be hampered when there is a disconnect between legal and popular consensus. An example is intellectual property. Under the auspices of the World Intellectual Property Organization, nominally strong copyright laws have been implemented throughout most of the world; but because the attitude of much of the population does not conform to these laws, a rebellion against ownership rights has manifested in rampant piracy, including an increase in peer-to-peer file sharing. Similarly, in Russia, tax evasion is common and a person who admits he does not pay taxes is not judged or criticized by his colleagues and friends, because the tax system is viewed as unreasonable. Bribery likewise has different normative implications across cultures.
Notes and references
2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents have confidence in and abide by the rules of society.
*Percentile rank indicates the percentage of countries worldwide that rate below the selected country.
- ^Cole, John et al. (1997). The Library of Congress, W. W. Norton & Company. p. 113
- ^ abThe Oxford English Dictionary has defined "rule of law" as:
See“Civil Affairs and Rule of Law”, Dudley Knox Library, Naval Postgraduate School (accessed October 18, 2013) (quoting the OED).[dead link] The phrase "rule of law" is also sometimes used in other senses. See Garner, Bryan A. (Editor in Chief). Black's Law Dictionary, 9th Edition, p. 1448. (Thomson Reuters, 2009). ISBN 978-0-314-26578-4
The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.