Final Word

Rule of law reverting to rule by law?


With President Zuma apparently pre-occupied by using the rules of law to dodge being judged on alleged transgressions of the law,much is presently said about the rule of law.

Probably the most comprehensive and most widely accepted modern definition of the concept the rule of law, regarded as the cornerstone on which the modern democratic society is founded, goes something like this: “… requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles, but no one, including government, is above the law and its underlying principles.”

However, it is when it comes to those principles, that things become complicated and at times extremely complex. Just contemplate the question of what should happen when the government acts in strict accordance with well-established and clearly defined legal rules, but it still produces a result that most would consider unfair or unjust?

History of the rule of law

Let’s see if we can get some clarity from the history of both the concept, and the actual legal/philosophic term the rule of law.

The term is the easier one to trace. It came to English from the French phrase La Principe de Legality, that literally translates to “the principle of legality” – as in government based on principles of law, and not just the will or power of men.

Between the term and the concept, the term is by far the younger one of the two. The furthest back the term, to some extent, can be traced back is only the 13th century when judge Bracton, during the reign of England’s king Henry III, wrote: "The king himself ought to be subject to God and the law, because law makes him king." 

The roots of the concept, however can at least to some extent be traced as far back as the first known written legal code for a government under Hammurabi, the King of Babylon in 1750 BC – more than 3 750 years ago!

Hammurabi wanted to unite his disparate kingdom and used a system of common rules of conduct, commerce, and devotion to the king, overseen by judges, to establish full control over his kingdom.

Compared to modern-day standards it was rather a case of ‘rule by law’ than ‘the rule of law.’ That Hammurabi was really after control over his subjects than ensuring they get fair treatment under legal certainty, is reflected in the penalties, like death and corporal punishment.

The concept of the ‘rule of law’ got somewhat of a boost over pure ‘rule by law’ in the relationship between the rulers and those being ruled in the days of ancient Greece. Around 350 BC Plato wrote:  “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."

The credit for the modern concept of the rule of law as we know it today goes to professor A.V. Diecy who in his classic book “Introduction to the Study of the Law of the Constitution," published in 1885, tried to develop the concept of the rule of law.

Diecy argued that 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. 

This establishes the fact that law is absolutely supreme and it excludes the existence of arbitrariness in any form. According to Diecy where there is scope discretion there is room for arbitrariness.

He held that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the authority of the ordinary tribunals.

Today the concept of the rule of law is globally largely accepted as developed by the International Commission of Jurists in what is known as the Delhi Declaration in 1959.

Its formulation reads: "The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality".

Final word

However, the battle between the ‘rule of law,’ where amongst other no one – including the ‘king’ of the day – is above the law, and rule by law seems to rage on to this day in South Africa. 

In fact, President Zuma seems to be using the rules of the law to frustrate the rule of law, in the full sense of the word, by using those rules to avoid answering for his actions in a court of law, and its principles, like avoiding a clash of interests.

 It is ironical that in the latter instance he finds himself in the league of ex-president Richard Nixon, who in 1974 tied to place himself beyond the reach of legal processes. And, we all know what happened to Nixon, who would forever be remembered for his overreach of his power.

by Piet Coetzer

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