What is the Rule of Law?
The rule of law is a system of rules and rights that enables fair and functioning societies. We may define this system as one in which the following four universal principles are upheld:
1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
2. The laws are clear, publicized, stable, and just; are applied evenly; 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. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
These four universal principles are further developed in the following nine factors, which measures how the rule of law is experienced by ordinary people in 99 countries around the globe.
1. Constraints on Government Powers
In a society governed by the rule of law, the government and its officials and agents are subject to and held accountable under the law. Modern societies have developed systems of checks and balances, both constitutional and institutional, to limit the reach of excessive government power, and to subject the government power, or ruler, to legal restraints. These checks and balances take many forms in various countries around the world: they do not operate solely in systems marked by a formal separation of powers, nor are they necessarily codified in law. What is essential, however, is that authority is distributed in a manner that ensures that no single organ of government has the practical ability to exercise unchecked power. It consists of 61 variables combined to form the following seven sub-factors:
1.1 Government powers are defined in the fundamental law
1.2 Government powers are effectively limited by the legislature
1.3 Government powers are effectively limited by the judiciary
1.4 Government powers are effectively limited by independent auditing and review
1.5 Government officials are sanctioned for misconduct
1.6 Government powers are subject to non-governmental checks
1.7 Transition of power is subject to the law
2. Absence of Corruption
The absence of corruption – conventionally defined as the use of public power for private gain – is one of the hallmarks of a society governed by the rule of law, as corruption is a manifestation of the extent to which government officials abuse their power or fulfill their obligations under the law. Forms of corruption vary, but include bribery, extortion, improper influence by public or private interests, and misappropriation of public funds or other resources.
These three forms of corruption are examined with respect to government officers in the executive branch, the judiciary, the legislature, and the police and the military. It consists of 68 variables combined to form the following four sub-factors:
2.1 Government officials in the Executive Branch do not use public office for private gain
2.2 Government officials in the judicial branch do not use public office for private gain
2.3 Government officials in the police and the military do not use public office for private gain
2.4 Government officials in the legislative branch do not use public office for private gain
3. Open Government
Open government is essential to the rule of law. It involves engagement, access, participation, and collaboration between the government and its citizens, and plays a crucial role in the promotion of accountability. Requesting information from public authorities is an important tool to empower citizens by giving them a way to voice their concerns and demand accountability from their governments. Open government is far more than transparency, and encompasses elements such as clear, publicized, and stable laws; administrative proceedings that are open for public participation; official drafts of laws and regulations that are available to the public; and the availability of official information.
3.1 The laws are publicized and accessible
3.2 The laws are stable
3.3 Right to petition the government and public participation
3.4 Official information is available on request
4. Fundamental Rights
Under the rule of law, fundamental rights must be effectively guaranteed. A system of positive law that fails to respect core human rights established under international law is at best “rule by law”. Rule of law abiding societies should guarantee the rights embodied in the Universal Declaration of Human Rights including the right to equal treatment and the absence of discrimination; the right to life and security of the person; the right to the due process of the law; the freedom of opinion and expression; the freedom of belief and religion; the absence of any arbitrary interference of privacy; the freedom of assembly and association; and the protection of fundamental labor rights.
4.1 Equal treatment and absence of discrimination
4.2 The right to life and security of the person is effectively guaranteed
4.3 Due process of law and rights of the accused
4.4 Freedom of opinion and expression is effectively guaranteed
4.5 Freedom of belief and religion is effectively guaranteed
4.6 Freedom from arbitrary interference with privacy is effectively guaranteed
4.7 Freedom of assembly and association is effectively guaranteed
4.8 Fundamental labor rights are effectively guaranteed
5. Order and Security
Human security is one of the defining aspects of any rule of law society. Protecting human security, mainly assuring the security of persons and property, is a fundamental function of the state. Not only does violence impose wounds on society, it also prevents the achievement of other aims, such as exercising fundamental human rights, and ensuring access to opportunities and justice. In extreme situations, violence might become the norm if legal rules are not enforced. Under the rule of law, the state must effectively prevent crime and violence of every sort, including political violence and vigilante justice. It encompasses three dimensions: absence of crime; absence of civil conflict, including terrorism and armed conflict; and absence of violence as a socially acceptable means to redress personal grievances.
5.1 Crime is effectively controlled
5.2 Civil conflict is effectively limited
5.3 People do not resort to violence to redress personal grievances
6. Regulatory Enforcement
Public enforcement of government regulations is pervasive in modern societies as a method to induce conduct. A critical feature of the rule of law is that such rules are upheld and properly enforced by authorities, particularly because public enforcement might raise the scope for negligence and abuse by officials pursuing their own interest. Appropriate and effective enforcement does not only mean that it occurs without public or private meddling, but also that regulatory proceedings are conducted in a timely way that respects the due process of law.
6.1 Government regulations are effectively enforced
6.2 Government regulations are applied and enforced without improper influence
6.3 Administrative proceedings are conducted without unreasonable delay
6.4 Due process is respected in administrative proceedings
6.5 The Government does not expropriate without adequate compensation
7. Civil Justice
In a rule of law society, ordinary people should be able to resolve their grievances and obtain remedies in conformity with fundamental rights through formal institutions of justice in a peaceful and effective manner, rather than resorting to violence or self-help. Civil justice requires that the system be accessible, affordable, effective, impartial, and culturally competent. Accessibility includes general awareness of available remedies; availability and affordability of legal advice and representation; and absence of excessive or unreasonable fees and hurdles. Impartiality includes absence of arbitrary distinctions, such as social and economic status, as well as decisions that are free of improper influence by public officials or private interests. Effective civil justice also implies that court proceedings are conducted in a timely manner and judgments are enforced without unreasonable delay. Finally, in a rule of law society, it is essential that alternative dispute mechanisms provide effective access to justice, while refraining from binding persons who have not consented to be bound by the mechanism.
This factor also measures if the system provides for fair and effective enforcement.
7.1 People can access and afford civil justice
7.2 Civil justice is free of discrimination
7.3 Civil justice is free of corruption
7.4 Civil justice is free of improper government influence
7.5 Civil justice is not subject to unreasonable delays
7.6 Civil justice is effectively enforced
7.7 ADRs are accessible, impartial, and effective
8. Criminal Justice
An effective criminal justice system is a key aspect of the rule of law, as it constitutes the natural mechanism to redress grievances and bring action against individuals for offenses against society. An effective criminal justice system is capable of investigating and adjudicating criminal offences effectively, impartially, and without improper influence, while ensuring that the rights of suspects and victims are protected.
8.1 Criminal investigation system is effective
8.2 Criminal adjudication system is timely and effective
8.3 Correctional system is effective in reducing criminal behavior
8.4 Criminal justice system is impartial
8.5 Criminal justice system is free of corruption
8.6 Criminal justice system is free of improper government influence
8.7 Due process of law and rights of the accused
9. Informal Justice
For many countries it is important to acknowledge the role played by traditional, or ‘informal’, systems of law — including traditional, tribal, and religious courts, as well as community-based systems — in resolving disputes. These systems often play a large role in cultures where formal legal institutions fail to provide effective remedies for large segments of the population or when formal institutions are perceived as foreign, corrupt, and ineffective. While recognizing the importance of these informal systems, a necessary element of the rule of law is that informal systems are effective, impartial, and protect fundamental rights, and are held to the same standards of fairness in resolving disputes as formal systems.
The factor is composed of the following three sub-factors:
9.1 Informal justice is timely and effective
9.2 Informal justice is impartial and free of improper influence
9.3 Informal justice respects and protects fundamental rights