“The rule of law” is an oft-used phrase. As we know, it is an umbrella term for a whole range of concepts. But where did it come from? Who made it up?
The concept of the rule of law has a long history dating back thousands of years. Many ancient civilisations upheld notions or aspects of it, including ancient Greece, China, Mesopotamia, India and Rome.
The idea that all men should follow and abide by the law was put to paper (or parchment, as it were) by Aristotle, an Ancient Greek philosopher who wrote the book Politics in about the fourth century B.C. Aristotle wrote that “law should govern”, and that citizens should take part in the government process.
The Ancient Greeks of Aristotle’s era are often regarded as the pioneers of modern democracy. They established a Senate to discuss and vote on government decisions, as well as separate law courts to try criminals who broke the law, with juries made up of ordinary citizens that could have hundreds of members.
The Greeks were among the first people in history to separate the court process from government power, and introduced judgment by their peers. Sure, their punishments may have been a little different to modern-day sentences (insert scene from Gladiator) but the concept of being held accountable to the law by courts independent from government was there.
According to the Oxford English Dictionary, the phrase “rule of law” was first written in English in about 1500 A.D. by English politician and member of parliament for Shropshire John Blount. Blount wrote that:
“Lawes and constitutcions be ordeyned be cause the noysome Appetit of man maye be kepte vnder the Rewle of lawe by the wiche mankinde ys dewly enformed to lyue honestly [sic].”
Run a quick spell check and translate from Shakespearean to 21st century English and you can see Blount emphasising a rule of law concept. He says, essentially, that the rule of law is necessary to prevent individuals from taking arbitrary power.
This sentence from 1559 A.D. was written by the Oxford-educated writer William Bavand:
“A Magistrate should..kepe rekenyng of all mennes behauiours, and to be carefull, least thei despisyng the rule of lawe, growe to a wilfulnes.”
As such, no individual is above the law – whether he is rich, poor, a king or lowly peasant.
UNSW law professor and former Director of Public Prosecutions Nicholas Cowdery, who is a self-confessed Magna Carta nerd, explains that, “In the early history of England, kings held sway. Over time laws developed but they were not written and recorded laws.”
Cowdery says there was a communal – albeit unwritten – “understanding” of what was or was not lawful. But it was not until English leaders signed the Magna Carta in 1215 that the idea of the rule of law, and monarchs being subject to law, was written down in history.
The Magna Carta, Latin for “Great Charter”, set in writing the rule that monarchs and politicians must answer to the same laws as their citizens. The catalyst for this agreement was the tyrannical rule of King John (yes, the greedy king from Robin Hood) who imposed heavy taxes on his people and refused to pay the same dues or to spread the taxed funds among his people fairly.
The Magna Carta is sometimes known as the “birth certificate” for the rule of law, and is still considered the first document in British and Australian legal history to lay out the rule of law on paper (even though it was actually written on sheep skin at the time).
“No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgment of his peers or by the law of the land.”
– Magna Carta, chapter 29
British jurist and philosopher Albert Venn Dicey (better known as A.V. Dicey) is known as the main proponent of the rule of law in modern history. He popularised the phrase “rule of law” in his book Introduction to the Study of the Law of the Constitution, published in 1885, and proposed three main principles for the rule of law:
- Everyone is equal before the law
- Sanctions have to be backed up by courts
- Courts are the ultimate body and are supreme decision-makers in civilised society
Today, the existence of these principles and the rule of law is one of the key indicators that determine freedom, democracy and good governance in a country. Research organisations have developed ways to track and rank countries based on the strength of the rule of law, such as the World Justice Project’s Rule of Law Index and Worldwide Governance Indicators project.
Australia ranked 11th in the latest Rule of Law Index published in 2016, with the same score of 0.81 as the UK, and 0.7 points below the world leader, Denmark.
The problem is, now that the phrase “rule of law” has existed for centuries, it seems like everyone wants to use it to make their political ideas or ambitions look good. Politicians in every western democracy, as well as many non-democratic or developing states, advocate their adherence and support for the rule of law.
This is despite the lack of rule of law existing in reality.
As former High Court of Australia Justice Murray Gleeson said in a speech to Melbourne University, “The rule of law is such a powerful rhetorical weapon, both in legal and political argument, that care is needed in its deployment.”
The rule of law is not static – it will continue to change in its application to different periods in time. Globalisation, changing cultural ideas and technology may hasten that rate of change or even enhance the rule of law. But the fundamental concept of everyone being equal under law needs to remain.