Bufford Defining the Rule of Law

I. Introduction
Defining the Rule of Law
By Hon. Samuel L. Bufford
From ABA Judges’ Journal, Fall 2007, at 10
The rule of law is the bedrock for building a structure of ordered liberty and progress in
civil society. It provides the foundation for economic development, the protection of
human rights, the provision of self-government, the prevention of crime and corruption,
the promotion of basic dignity, and the achievement of economic and social rights. 1
The purpose of this article is to articulate and clarify the meaning of the rule of
law, to give content and precision to a concept that often means various things to people
at different times. However, despite the varying interpretations given to the rule of law,
there are certain basic underlying tenets that should be adopted and satisfied in every
country, whatever its political, legal, and cultural traditions and values.
At the same time, it is important to recognize that the rule of law is not
an international or apolitical matrix that can be imposed on a particular culture in a
particular country. 2 Instead, the rule of law must be realized through each country’s
distinctive political, cultural, and historical institutions and traditions. In consequence, the
particular realization of the rule of law varies from country to country, both in the
developed world and in developing countries.
1 It would be an overstatement to claim that these social goods cannot be attained without the
rule of law. China, for example, is a country where economic and other benefits are achieved
without a strong rule of law structure. See, e.g., Frank Upham, Mythmaking in the Rule-of-Law
Orthodoxy, in PROMOTING THE RULE OF LAW ABROAD 75, 82-83 (Thomas Carothers, ed., 2006).
However, these benefits are far more difficult to achieve in most countries, and impossible in
many countries, without the rule of law.
2 See, e.g., id. at 75-77.
1

There is a rich literature on the definition of the rule of law, and this article does
not attempt directly to enter the debate on the proper definition of the concept. 3 This
article takes the position that the rule of law has both procedural and substantive
dimensions, a view that is consistent with the American Bar Association’s (ABA) Rule of
Law Initiative to promote the rule of law throughout the world. The rule of law also has
economic dimensions and special applications in times of crisis that have been articulated
elsewhere and are beyond the scope of this article. 4
It is important to recognize that the rule of law does not capture everything that is
good and important in civil society. There are other values that nations should also strive
to realize, such as economic growth, education, good governance, protection of the
environment, cultural development, and the preservation of cultural traditions.. 3 While
adhering to the rule of law does not guarantee an effective government, economic
development, or prosperity, it provides strong support for attaining these goals.
A. Short Definitions
When discussing the rule of law, it is not feasible to specify in detail all of the
considerations articulated in the literature on this subject. To facilitate discussion,
however, two short and abbreviated definitions may be useful. First, Justice Anthony
3 See, e.g., Joel M. Ngugu, Policing Neo-Liberal Reforms: the Rule of Law as an Enabling and
Restrictive Discourse, 26 U. PA. J. INT’L ECON. L. 513, 533-43 (2005) (describing three different
kinds of definition for rule of law: a formal definition measuring a legal system against specified
formal criteria; a substantive definition looking at substantive outcomes, such as justice and
fairness, that is driven by a moral vision of the “good legal system;” and a function definition
focusing on how well a legal system performs a specified function); Matthew Stephenson, RULE
OF LAW AS A GOAL OF DEVELOPMENT POLICY, World Bank, Law & Justice Institutions (2007).
4 See, e.g., Samuel L. Bufford, International Rule of Law & the Market Economy, 12 SW. J.L. &
TRADE AM. 303 (2006) (economic dimensions of the rule of law); Kim Askew, Opening Statement
– Crisis Does Not Suspend the Constitution, LITIGATION, 1 (Spring 2007) (rule of law in times of
crisis).
3 See U.N. Charter art. 62, para. 1; United Nations Educational, Scientific and Cultural
Organization [UNESCO], Constitution, Nov. 16, 1945.
2

Kennedy stated, in his 2006 address at the annual meeting of the ABA, that the rule of
law includes at least the following concepts:
1. The Law is superior to, and thus binds, the government and
all its officials.
2. The Law must respect and preserve the dignity, equality,
and human rights of all persons. To these ends the Law
must establish and safeguard the constitutional structures
necessary to build a free society in which all citizens have a
meaningful voice in shaping and enacting the rules that
govern them.
3. The Law must devise and maintain systems to advise all
persons of their rights, and it must empower them to fulfill
just expectations and seek redress of grievances without
fear of penalty or retaliation. 4
Building on this articulation, the ABA World Justice Project has developed the
following working definition of the rule of law:
The ABA’s advocacy of the importance of an independent
judiciary in the administration of the Rule of Law contemplates a form of
government where the law is superior to, and thus binds, the government
and all its officials. The law must respect and preserve the dignity,
equality and human rights of all persons. To these ends the law must
establish and safeguard constitutional structures necessary to build a free
society in which all citizens have a meaningful voice in shaping and
enforcing the rules that govern them. The law must devise and maintain
systems to advise all persons of their rights, and it must empower them to
fulfill just expectations and seek redress of grievances without penalty or
retaliation. There must be a general congruence between the laws as
promulgated and as applied by the courts so that citizens may effectively
guide their conduct.
The ABA’s World Justice Project’s working definition of the Rule
of Law is based on four principles:
1. A system of self-government in which all persons,
including the government, are accountable under the law;
2. A system based on fair, publicized, broadly understood and
stable laws;
3. A fair, robust and accessible legal process in which rights
and responsibilities based in law are enforced; and
4
Anthony Kennedy, Associate Justice, United States Supreme Court, Address at the ABA Annual
Convention (August 5, 2006).
3

4. Diverse, competent and independent lawyers and judges. 5
While these short definitions are useful and capture some of the essence of the
concept of the rule of law, there is much more that needs to be articulated.
B. The Role of Lawyers
Although judges play a critical role in the effective functioning of a legal system,
lawyers, more than anyone else, are the guardians of the rule of law. Indeed, lawyers
ensure that laws are properly respected and fairly applied. 6 It is also lawyers who present
cases in court, who provide the evidence needed for a court to decide a dispute, and who
educate judges on the relevant law for deciding a case. It is lawyers who help clients
structure transactions within the bounds of the law to achieve the desired results for their
clients.
II. Human Rights
One central tenet of the rule of law is that every society must protect human rights and
provide fundamental freedoms for its members (and for its visitors and guests).
Internationally recognized human rights generally fall into two categories: civil and
political rights, and economic and social rights.
A. Civil and Political Rights
The General Assembly of the United Nations adopted and proclaimed the Universal
Declaration of Human Rights (hereinafter the Universal Declaration) on December 10,
5 ABA Rule of Law Definition. (incomplete citation- date? Was this from an ABA report?)
6 See Council of Bars and Law Societies of Europe [CCBE], Code of Conduct for Lawyers in the
European Union, at 5 (Oct. 28, 1988), http://www.ccbe.org/doc/En/code2002_en.pdf; cf. CCBE,
Resolution on Human Rights and the Rule of Law, (Nov. 27, 2004),
http://www.ccbe.org/doc/En/ccbe_resolution_human_rights_en.pdf (resolving the importance of
lawyers in a society based on democracy and the rule of law); cf. Basic Principles on the Role of
Lawyers, 13-14, U.N. Doc. ST/HR/ (Sept. 7, 1990) (describing the role and duties of lawyers in
their effort to uphold human rights and freedoms), available at
http://www.hri.ca/uninfo/treaties/44.shtml.
4

1948. 7 In this Declaration, the United Nations stated that, “recognition of the inherent
dignity and equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world . . . .” 8 The United Nations has also
sponsored the International Covenant on Civil and Political Rights, 9 which together with
the Universal Declaration has inspired a substantial number of additional regional
declarations of human rights, including covenants addressing particular human rights in
greater detail.
While many of the rights declared in these documents are aspirational, most are
considered core rights that must be protected by the legal system of any well-ordered
society. 10 These rights include: the recognition that all human beings are born free and
equal in dignity and rights; 11 that everyone has the right to life, liberty, and security of
person; 12 that nobody should be held in involuntary servitude, and that slavery and the
slave trade should be abolished; 13 that no person should be subjected to torture or to
7 Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1 st plen.
mtg., U.N. Doc A/810 (Dec. 12, 1948) [hereinafter Universal Declaration].
8 Id. at pmbl.
9 International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. GAOR, U.N. Doc.
A/6316 (1966), 999 U.N.T.S. 171 (Dec. 16, 1966) [hereinafter Civil and Political Rights].
10 See Universal Declaration, supra note 9 (“human rights should be protected by the Rule of
Law”); Charter of Fundamental Rights of the European Union, pmbl., 200 J.O. (C 364)
[hereinafter Fundamental Rights of the EU]; Convention for the Protection of Human Rights and
Fundamental Freedoms, pmbl., E.T.S. 005, 213 U.N.T.S. 222 (Nov. 4, 1950) [hereinafter
Fundamental Freedoms].
11 See Universal Declaration, supra note 9, art. 1
12 See id. art. 3; Fundamental Freedoms, supra note 12, at art. 5; Civil and Political Rights, supra
note 11, art. 9; See Fundamental Rights of the EU, supra note 12, art. 6; League of Arab States,
Arab Charter on Human Rights, art. 5, reprinted in 18 HUM. RTS. L.J. 151 (1997) [hereinafter Arab
Charter]; Organization of American States, American Declaration of the Rights and Duties of
Man, art. 1, May 2, 1948, O.A.S. Res. XXX [hereinafter American Declaration].
13 See Universal Declaration, supra note 9, art. 4; Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, April 30, 1956, 226
U.N.T.S. 3; Civil and Political Rights, supra note 11, art. 8; Fundamental Freedoms, supra note
12, art. 4; Fundamental Rights of the EU, supra note 12, art. 5; Organization of American States,
American Convention on Human Rights, art. 6, Nov. 22, 1969, O.A.S.T.S. 36, 1144 U.N.T.S. 123
[hereinafter American Convention]; African Union, African (Banjul) Charter on Human and
5

cruel, inhuman, or degrading treatment or punishment; 14 that everyone has the right to
recognition as a person before the law; 15 that all are equal before the law and entitled to
the equal protection of the laws without discrimination; 16 that everyone has the right to
freedom of movement and residence within a country, and to leave and return to any
country (including her own country); 17 that everyone has the right to seek asylum in
appropriate circumstances; 18 and that everyone has a right to a nationality. 19 Insofar as
feasible, the rule of law requires that disabled persons enjoy full and effective
participation and inclusion in society, 20 and that the foregoing rights be recognized for
these individuals as well. 21
Peoples’ Rights, AU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (June 27, 1981) [hereinafter African
Charter].
14 See, e.g., Universal Declaration, supra note 9, art. 5; Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 GAOR Supp. (No.
51) at 197, U.N. Doc. A/39/51 (Dec. 10, 1984); Civil and Political Rights, supra note 11, art. 7;
Fundamental Freedoms, supra note 12, art. 3; Fundamental Rights of EU, supra note 15, art. 4;
American Declaration, supra note 14, art. 5; Arab Charter, supra note 14, art. 1; African Charter,
supra note 15, art. 15; Asian Human Rights Commission, Asian Human Rights Charter,
http://material.ahrchk.net/charter/, art. 3.5 (May 17, 1998) [hereinafter Asian Charter].
15 See Universal Declaration, supra note 9, art. 6; Fundamental Freedoms, supra note 12, art. 6;
American Convention, supra note 15,( art. 3; Arab Charter, supra note 14, art. 18.
16 See Universal Declaration, supra note 9, art. 7; Arab Charter, supra note 14, art. 2; African
Charter, supra note 15, art. 3; Asian Charter, supra note 16, art. 5.2.
17 See Universal Declaration, supra note 9, art. 13; Fourth Protocol to the Convention for the
Protection of Human Rights and Fundamental Freedoms art. 2, Sept. 16, 1963, E.T.S 046; Civil
and Political Rights, supra note 11, art. 12; Fundamental Freedoms, supra note 12, art. 18;
American Convention, supra note 15, art. 22; Arab Charter, supra note 14, art. 20-22; African
Charter, supra note 15, art. 12(1); American Declaration, supra note 14, art. 8.
18 See Universal Declaration, supra note 9, art. 14(1); Arab Charter, supra note 14, art. 23;
African Charter, supra note 15, art. 12(3); American Declaration, supra note 14, art. 27.
19 See Universal Declaration, supra note 9, art. 15(1); Arab Charter, supra note 14, art. 24;
American Declaration, supra note 14, art. 19.
20 See, e.g., International Convention on the Protection and Promotion of the Rights and Dignity
of Persons with Disabilities, G.A. Res. 61/106, art. 3, (Aug. 25, 2006) [hereinafter Disabilities];
Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental
Health Care, G.A. Res. 46/119, principle 1 art. 4, U.N. Doc. A/46/49, (Dec. 17, 1991) [hereinafter
Mental Health Care]; Declaration on the Rights of Disabled Persons, G.A. Res. 3447 (XXX), art.
2, U.N. Doc. A/10034, (Dec. 9, 1975) [hereinafter Disabled Persons]; Fundamental Freedoms,
supra note 12, art. 26; see generally Arab Charter, supra note 14, art. 41; African Charter, supra
note 15, art. 18(4); Asian Charter, supra note 16, art. 11 (??).
21 See Disabilities, supra note 22, arts. 3-5, 10-22; Mental Health Care, supra note 22, principle 1
art. 5; Disabled Persons, supra note 22, art. 4; Declaration on the Rights of Mentally Retarded;
Persons, G.A. Res. 2856 (XXVI), art. 1, U.N. Doc. A/8429 (Dec. 20, 1971); Fundamental
6

The rule of law also provides that certain types of activity are not subject to state
regulation. For example, everyone has the right to freedom of thought, conscience, and
religion, including the right to practice a religion freely and to change one’s religion. 22
The rule of law also provides that everyone has the right to freedom of opinion and
expression, including the right to receive and impart information and ideas through any
media without regard to national borders, 23 and recognizes a person’s right to peaceful
assembly and association. 24 The rule of law requires not only the legal recognition of
these rights, but also that governments conform their conduct so that these rights are
protected and not infringed by state action.
The rule of law has special implications in the marriage and family context as
well. First, it requires that every adult man and woman have a right to marry and to have
a family, without any restrictions as to race, nationality, or religion. 25 Second, it requires
that men and women have equal rights as to marrying, and equal rights during a marriage
and at its dissolution. 26 Third, it requires that marriage be based on the free and full
Freedoms, supra note 12, art. 26; see generally Arab Charter, supra note 14, art. 41; African
Charter, supra note 15, art. 18(4); Asian Charter, supra note 16, art. 11. (??).
22 See Universal Declaration, supra note 9, art. 18; Civil and Political Rights, supra note 11, art.
18; Fundamental Freedoms, supra note 12, art. 9; Fundamental Rights of the EU, supra note 12,
art. 10; American Convention, supra note 15, art. 12; Arab Charter, supra note 14, art. 26-27;
African Charter, supra note 15, art. 8; Asian Charter, supra note 16, art. 6.3 (??); American
Declaration, supra note 14, art. 3.
23 See Universal Declaration, supra note 9, art. 19; Fundamental Freedoms, supra note 12, art.
10; Fundamental Rights of the EU, supra note 12, art. 11; Arab Charter, supra note 14, art. 27;
African Charter, supra note 15, art. 9; Asian Charter, supra note 16, art. 7.2 (??); American
Convention, supra note 15, art. 13; American Declaration, supra note 14, art. 4.
24 See Universal Declaration, supra note 9, art. 20(1); Civil and Political Rights, supra note 11, art.
21-22; Fundamental Rights of the EU, supra note 12, art. 12; American Convention, supra note
15, art. 15-16; Arab Charter, supra note 14, art. 28; African Charter, supra note 15, art. 10-11;
Asian Charter, supra note 16; art. 15.2(f); American Declaration, supra note 14, art. 21.
25 See Universal Declaration, supra note 9, art. 16(1); Fundamental Freedoms, supra note 12, art.
12; Fundamental Rights of the EU, supra note 12, art. 9; American Convention, supra note 15,
art. 17(2).
26 See Universal Declaration, supra note 9, art. 16(1); Convention on the Elimination of All Forms
of Discrimination against Women, G.A. Res. 34/180, art. 16 (Dec. 18, 1979) [hereinafter Women].
7

consent of each spouse. 27 Motherhood and childhood are entitled to special protection
and assistance, and all children are entitled to equal social protection, whether born
within or out of wedlock. 28
In addition, the rule of law requires the protection of the family as a fundamental
group unit of society. 29 In this context, children must be protected against discrimination,
including discrimination based on the status, activities, expressed opinions, or beliefs of
the parents, legal guardians, or family members. 30 Similarly, children must be protected
from abuse, maltreatment or exploitation, 31 including sexual exploitation and abuse. 32
Furthermore, each child should be provided an education 33 and medical services, 34
insofar as feasible, and be protected from economic exploitation. 35
B. Economic and Social Rights
Economic and social rights have not received as much emphasis in U.S. thought as civil
and political rights. Nonetheless, they are important values that receive international
recognition as fundamental to human society. 36 For the most part, these rights are
27 See Universal Declaration, supra note 9, art. 16(2); Civil and Political Rights, supra note 11, art.
23(3); Women, supra note 28, art. 16; American Convention, supra note 15, art. 17(3).
28 See Universal Declaration, supra note 9, art. 25(2); Civil and Political Rights, supra note 11, art.
23(4); American Convention, supra note 15, art. 17(4)(5), American Declaration, supra note 14,
art. 7.
29 See Universal Declaration, supra note 9, art. 16(3); Civil and Political Rights, supra note 11, art.
33; Fundamental Rights of the EU, supra note 12, art. 33; American Convention, supra note 15,
art. 17(1), Arab Charter, supra note 14, art. 38; African Charter, supra note 15, art. 18.
30 See Convention on the Rights of the Child, G.A. Res. 44/25, art. 2, U.N. Doc. A/44/49, (Nov.
20, 1989) [hereinafter Child].
31 See id. art. 19; Civil and Political Rights, supra note 11, art. 24; Fundamental Freedoms, supra
note 12, art. 24; American Declaration, supra note 14, art. 7; American Convention, supra note
15, art. 19; Arab Charter, supra note 14, arts. 10(2), 33; African Charter, supra note 15, art. 18(3);
Asian Charter, supra note 16, art. 10. (??)
32 See Child, supra note 32, art. 34; Asian Charter, supra note 16, art. 10. (??)
33 See Child, supra note 32, art. 28; Fundamental Freedoms, supra note 12, art. 14.
34 See Child, supra note 32, art. 24.
35 See Child, supra note 32, art. 32; Arab Charter, supra note 14, arts. 10(2), 34; Asian Charter,
supra note 16, art. 10. (??)
36 See International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI),
U.N. Doc. A/6316, 993 U.N.T.S. 3 (Dec. 16, 1966).
8

aspirational, rather than mandatory, and depend on a nation’s level of economic
development.
Aspirational rights in the economic context include the right to work, to just and
favorable conditions of employment, and to protection against unemployment; 37 the right
to equal pay for equal work; 38 and the right to form and join trade unions. 39 The rule of
law also advocates the right to rest and leisure, including a reasonable limitation on
working hours and periodic paid vacations. 40 Other aspirational rights include a right to
remuneration that ensures an adequate living standard sufficient to provide for the health
and well-being of the worker and the worker’s family, including food, clothing, housing,
and medical care, and the right to security in the event of unemployment, sickness,
disability, widowhood, or old age. 41
Finally, the rule of law provides that individuals have a right to an education,
which should be free and mandatory at the elementary level, and equally accessible to all
on the basis of merit at the higher and professional levels. 42
C. Protection of Minority Rights
37
See Universal Declaration, supra note 9, art. 23(1); Fundamental Rights of the EU, supra note
12, art. 16.
38
See Universal Declaration, supra note 9 art. 23(2); Fundamental Rights of the EU, supra note
12, art. 23, 27; African Charter, supra note 15, art. 15.
39
See Universal Declaration, supra note 9, art. 23(4); Civil and Political Rights, supra note 11, art.
22(1); Fundamental Rights of the EU, supra note 12, art. 12(1); Fundamental Freedoms, supra
note 12, art. 11; Arab Charter, supra note 14, art. 29; Asian Charter, supra note 16, art. 12.1. (??)
40
See Universal Declaration, supra note 9, art. 24; American Declaration, supra note 14, art. 15.
41
See Universal Declaration, supra note 9, arts. 23(3), 25(1); Arab Charter, supra note 14, art.
30, 32; Asian Charter, supra note 16, art. 9.3 (??); American Declaration, supra note 14, arts. 14,
16.
42
See Universal Declaration, supra note 9, art. 26(1); Protocol to the Convention for the
Protection of Human Rights and Fundamental Freedoms art. 2, Mar. 20, 1952, E.T.S 009
[hereinafter Protocol to the Convention]; Fundamental Rights of the EU, supra note 12, art. 14;
Arab Charter, supra note 14, art. 35, African Charter, supra note 15, art. 16, Asian Charter, supra
note 16, art. 3.2 (??); American Declaration, supra note 14, art. 12.
9

The vast majority of countries have ethnically diverse populations and ethnic minorities
of significant size. Indeed, some of the worst recent civil wars have arisen because of
ethnic strife. The rule of law requires the protection of ethnic minorities and the
recognition of their rights to their ethnic identities. 43 It condemns any form of
discrimination against a person because of his or her ethnic identity. 44 Indeed, it may be
necessary to provide special advantages to members of an ethnic minority to redress past
discrimination and to guarantee equality of treatment and opportunity. In addition, any
substantial ethnic minority must have a realistic opportunity to participate in a country’s
government. 45
III. Procedural Requirements for the Rule of Law
The rule of law also has extremely important procedural dimensions, in addition to the
foregoing substantive dimensions. It requires a set of rules that is known in advance, rules
that are actually and fairly enforced, mechanisms to ensure proper application of the rules
(but permit controlled departure from the rules where necessary), an independent judicial
system to make binding decisions when conflicts in the application of the rules arise,
and procedures for amending and revising the rules. 46
A. Fairness and Due Process
43
See Civil and Political Rights, supra note 11, art. 27; Arab Charter, supra note 14, art. 37; Asian
Charter, supra note 16, art. 6.1, 8.1 (??); Fundamental Freedoms, supra note 12, art. 14; see
generally Fundamental Rights of the EU, supra note 12, art. 22; see generally International
Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), Annex,
U.N. Doc. A/6014 (Dec. 21, 1965) [hereinafter Discrimination].
44
Discrimination, supra note 45, art. 2(1)(e); Fundamental Rights of the EU, supra note 12, art.
21; Twelfth Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms art. 1, Apr. 11, 2000, E.T.S. 177.
45
American Convention, supra note 15, art. 23; Arab Charter, supra note 14, art. 19, 33; African
Charter, supra note 15, art. 13; American Declaration, supra note 14, art. 20.
46
See, e.g., Ibraham Shihata, THE WORLD BANK IN A CHANGING WORLD 85 (Franziska Tschofen &
Antoino R. Parra eds., 1991).
10

To protect the substantive requirements of the rule of law, certain procedural
requirements must be established, including the right to an effective remedy by
competent domestic tribunals for acts violating a society’s fundamental freedoms. 47 The
rule of law demands fairness in both the criminal and civil law context.
1. Fairness in Criminal Procedures
The rule of law plays a critical role in ensuring the fair treatment of prisoners
and those accused of crimes. For example, members of the public, whether accused of a
crime or not, must be protected from unreasonable searches and seizures. A government
will quickly lose the respect of the public if it subjects persons to unreasonable searches
of homes or the unreasonable seizure of personal property.
a. Rights of the Accused
The rule of law also imposes special requirements regarding how those accused of
crimes may be treated. For instance, it requires that no one shall be subjected to arbitrary
arrest, detention or exile; 48 that anyone charged with a crime has a right to a fair and
public hearing by an impartial tribunal; 49 that a person is presumed innocent until proven
guilty, 50 and that a person has a full and fair opportunity to present a defense to criminal
charges. 51
47 See Universal Declaration, supra note 9, art. 8; Fundamental Rights of the EU, supra note 12,
art. 47; American Declaration, supra note 14, art. 26.
48 See Universal Declaration, supra note 9, art 9; Civil and Political Rights, supra note 11, art. 9;
American Convention, supra note 15, art. 7(3); African Charter, supra note 15, art. 6; Asian
Charter, supra note 16, art. 3.6, 14.3 (??); American Declaration, supra note 14, art. 25.
49 See Universal Declaration, supra note 9, art. 10; Civil and Political Rights, supra note 11, art.
2(3)(b), 14(1); Fundamental Rights of the EU, supra note 12, art. 47; American Convention, supra
note 15, art. 1, 7(4); Asian Charter, supra note 16, art. 3.7 (??); American Declaration, supra note
14, art. 18.
50 See Universal Declaration, supra note 9, art. 11(1); First United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, Aug. 30, 1955, United Nations Standard
Minimum Rules for the Treatment of Prisoners, art. 84(2), U.N. Doc A/CONF/611, annex I
[hereinafter Treatment of Prisoners]; Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, G.A. Res. 43/173, principle 37, (Dec. 9, 1998)
11

If a person is arrested, he or she must be promptly charged with a crime or be
released; a lengthy detention without any criminal charge is inconsistent with the rule of
law. 52 In addition, once a person is charged with a crime, a prompt trial on the charges is
required (unless the accused voluntarily consents to a delay in trial). 53 The rule of law
also stipulates that a person must be eligible for release (on a reasonable bail,
if appropriate) pending trial. 54
b. Prisoner Rights
Because prisoners are in the custody of the state, the rule of law requires the state
to protect them and provide for their well-being, which involves providing adequate food,
shelter, and clothing, and offering medical services as needed. 55 The rule of law also
prohibits transferring a prisoner to a mental hospital without adequate documentation of
mental illness or incapacity, or subjecting a prisoner to psychotropic drugs without the
prisoner’s informed consent. 56 In addition, procedures consistent with due process must
be followed before probation or parole for a person convicted of a crime may be revoked.
[hereinafter Imprisonment]; Civil and Political Rights, supra note 11, art. 14(2); Fundamental
Rights of the EU, supra note 12, art. 48; American Convention, supra note 15, art. 8(2); Arab
Charter, supra note 14, art. 7; African Charter, supra note 15, art. 7; Asian Charter, supra note
16, art. 3.7. (??)
51 See Universal Declaration, supra note 9, art. 11(1); American Convention, supra note 15, art.
7(5); African Charter, supra note 15, art. 7; Asian Charter, supra note 16, art. 3.7.
52 See Imprisonment, supra note 52, principle 37; Civil and Political Rights, supra note 11, art.
9(3); American Convention, supra note 15, art. 7(5)(6); Arab Charter, supra note 14, art. 8;
African Charter, supra note 15, art. 7.
53 See Imprisonment, supra note 52, principle 38.
54 See Id. at principle 39; American Convention, supra note 15, art. 7(5).
55 See generally Treatment of Prisoners, supra note 52; See Imprisonment, supra note 52,
principle 24; Asian Charter, supra note 16, art. 14.2 (??)
56 See Imprisonment, supra note 52, principle 22; Arab Charter, supra note 14, art. 13(b).
12

Torturing a person in custody, whether or not the person has been convicted of a
crime, is also prohibited. 57 Similarly, the rule of law prohibits imposing unreasonably
harsh, cruel, or degrading punishment. 58
2. Fairness in Civil Cases
The rule of law requires that civil litigants, as well as criminal defendants, be
treated fairly. The European Court of Justice has recognized that, in the commercial law
context, the parties are entitled to “equality of arms,” which includes a right to be heard, a
right to present one's evidence and arguments to the court, and a right to respond to the
evidence and arguments of the opponent. 59 These rights by necessity imply a right to
adequate notice and time to prepare one's own evidence and arguments, and to respond to
the opponent. 60 Beyond these procedural requirements, the rule of law also requires a fair
and impartial court where decisions are based on the evidence presented.
B. Equality and Equal Protection of the Laws
In addition to fairness, the rule of law requires that people be given equal protection
under the laws, which means that the law must treat similarly those who are in similar
situations. Discriminatory treatment of individuals based on their race, age, gender,
national origin, wealth, or sexual orientation is prohibited.
IV. Institutional Requirements for the Rule of Law
One of the foundations of the rule of law is that governmental institutions must provide a
structure for the political, economic, social, and cultural sectors to carry out their
57
See Treatment of Prisoners, supra note 52, principle 6; Imprisonment, supra note 52, principle
6; Fundamental Rights of the EU, supra note 12, at art. 4; Asian Charter, supra note 16, art.
14.2.(??)
58
See Imprisonment, supra note 52, principle 1; Civil and Political Rights, supra note 11, art.
10(1); Asian Charter, supra note 16, art. 14.2. (??)
59
See Case T-107/02, GE Betz Inc. v. Office for Harmonisation in the Internal Market, 2004
E.C.R. II-1845 (paragraph 72).
60
Id.
13

activities. These institutions must include governmental structures, laws, judicial systems,
and administrative systems.
One of the most important prerequisites for the rule of law is that a country must
have an effective functioning government. In some countries the political order has
broken down, and there is no central governmental power. In other countries, there are
regions where the power of the state is not effective. In these places, there is no rule of
law.
A. Self-Government
The rule of law also has important implications for political rights. It provides that
individuals must have a right to participate in national government, either directly or
through freely chosen representatives, 61 and that everyone must have a right of equal
access to the government and to public service. 62 Government must be based on the will
of the people, expressed through periodic elections by secret voting procedures featuring
equal and universal suffrage. 63 The rule of law requires that persons have a right to vote
in elections and that each person’s vote be counted equally.
B. Laws
Of course, the rule of law requires that a legal system must have laws as well as a
constitution or basic law to serve as the legal framework for all other laws. It may also
include such elements as a civil code, a commercial code, and rules of court. In addition,
a system must have positive laws to protect legal rights and to provide procedures for
61 See Universal Declaration, supra note 9; see Civil and Political Rights, supra note 11, art. 25;
see American Declaration, supra note 14, art. XX; see also American Convention, supra art. 23.
62 See Universal Declaration, supra note 9, art. 21(2); see Civil and Political Rights, supra note
11, art. 25; see American Declaration, supra note 14, art. XX; see American Convention, supra
note 15, art. 23.
63 See Universal Declaration, supra note 9, art. 21(3); see Civil and Political Rights, supra note 11,
art. 25; see Protocol to the Convention, supra note 44, art. 3; see also American Declaration,
supra note 14, art. XX; see American Convention, supra note 15, art. 23.
14

enforcing legitimate expectations. The rule of law requires that all government officials,
especially those at the highest levels of government, be subject to the laws. 64
1. Substantive Provisions
Criminal laws are the most obvious substantive laws in a system providing for the
rule of law. These laws provide for punishment of the most egregious injuries to other
people and to good order. The goal is to punish and deter criminal conduct so that
aggrieved individuals are not tempted to mete out punishment themselves. 65
Substantive civil laws impose order on a wide variety of human endeavors, from
entering into contracts to creating business and social organizations. The rule of law does
not require any particular body of substantive laws, but instead requires applicable laws
to govern activities that are important in a society, and to structure such activities for the
benefit of participants and to minimize the externalities that may arise therefrom.[Judge
Bufford, could you please clarify what these externalities are?] 66
2. Procedural Features
According to the rule of law, a society must have a reasonably stable system of
laws that is generally known by and made available to the public. Laws must be fair and
applied equally to all citizens. It is especially important that individuals whose conduct
is impacted by a law have reasonable access to the text of the law so that they can
conform their actions to the law’s requirements. 67
64
E.g., Statute of the International Criminal Court art. 27, U.N. Doc. A/CONF.183/9 (July 17,
1998) [hereinafter Rome Statute].
65
See STANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES, 101-35
(7th ed. 2001).
66
See Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in
Civil and Commercial Matters, 1972 O.J. (L 299) [hereinafter Brussels Convention].
67
Cf. Convention for the Protection of Human Rights and Fundamental Freedoms art. 44, Nov. 4,
1950, E.T.S 005, 213 U.N.T.S 222 (publishing final judgments) [hereinafter Fundamental
Freedoms].
15

The rule of law is promoted by a generally stable system of law. 68 It is especially
important that laws have no retroactive deleterious effect. 69 This means that conduct that
was legal at the time it was undertaken, even if later prohibited by the legislature, must be
protected.
C. Judicial System
An effective and independent judicial system is necessary to resolve business and other
disputes (including disputes over governmental regulation) that arise. Such a system must
provide independent judicial decisions, reasonable access to justice, and must not impose
unreasonable costs on the participants. No person or institution should be “above the law”
and exempted from its requirements.
1. Judicial Independence
Judicial independence is an essential cornerstone of the rule of law and for the
proper functioning of a market economy. A judicial system must promptly resolve
disputes on their merits by an impartial judiciary, 70 as unreasonable delays seriously
undermine the rule of law. The rule of law also requires at least some level of appellate
review of judicial decisions to ensure proper interpretation and application of the laws. 71
Judicial independence requires that judicial participation in politics
be substantially circumscribed. While the law may permit a judge to be a member of a
68
See Paul Gewirtz, Independence and Accountability of Courts, 24 GLOBAL L. REV. 7 (2002)
(published in Chinese but available in an English translation at
http://www.law.yale.edu/documents/pdf/Ind_and_Acct_(English).pdf) (pointing out the value of a
precedent system in giving a legal system predictability and reliability).
69
See Fundamental Freedoms, supra note 12, art. 7; see also Rome Statute, supra note 66, art.
24(1); cf. id. art. 24(2) (applying more favorable law to person being investigated, prosecuted or
convicted if there is a change in law prior to final judgment).
70
See Fundamental Freedoms, supra note 12, art. 6; see also American Convention, supra note
15, art. 8.
71
Cf. Statute of the Court of Justice of the European Union art. 4, January 2007,
http://curia.europa.eu/en/instit/txtdocfr/txtsenvigueur/statut.pdf [hereinafter Court of Justice
Statute] (allowing appeals from decisions of the Court of First Instance).
16

political party, the law should prohibit a judge from running for political office.
Similarly, judges should not engage in political fundraising or other clearly partisan
activities.
Further, judicial independence requires that both an individual judge and the
system of justice be shielded from legislative reprisal for a judicial decision. In addition,
legislatures must be prohibited from reducing a judge’s salary or benefits, or even
reducting the funding of the judiciary generally, because of displeasure with particular
judicial decisions.
Reasonable access to courts requires that judicial business be conducted in
public. 72 This requirement has two dimensions. First, both written judicial decisions and
papers filed with courts must be available to the public when a reasonable request is
made. 73 Second, courts must be open to the public so that citizens can see justice in action
and be satisfied that court procedures are fair and equitable.
The rule of law also requires that judges be competent. 74 This means that judges
must meet minimum requirements in education, experience, moral standards, and judicial
temperament. It also requires judges to continually keep abreast of new developments in
the law, legal systems, and judicial procedures. Because laws and legal procedures
change frequently, ongoing judicial education is therefore critical to ensuring that judges
will be able to perform their judicial duties effectively.
72 Thomas M. Riordan, Copping an Attitude: Rule of Law Lessons from the Rodney King Incident,
27 LOY. L.A. L. REV. 675, 736 (1994) (citing GEOFFREY DE Q. WALKER, THE RULE OF LAW:
FOUNDATION OF CONSTITUTIONAL DEMOCRACY 40 (1988)).
73 It is appropriate to adopt measures to protect trade secrets and other confidential information.
74 See Fundamental Freedoms, supra note 12, art. 21(1); see ECHR Rules, supra note 100, Rule
3(1)(There is no note 100; not certain what this citation is referring to); see also Rome Statute,
supra note 66, art. 3; see also Statute of the International Court of Justice art. 2, June 26, 1945,
17 U.N.T.S. 111 [hereinafter ICJ Statute].
17

The rule of law further requires that no public official be above the law or exempt
from its requirements. While public officials enjoy a measure of immunity while working
in their official capacities, the rule of law requires that they nonetheless be subject to the
same laws as every other individual outside the sphere of their official duties.
The rule of law also requires that the legal system give the impression or
appearance to the public that it is doing justice. To accomplish this, those who administer
justice must reflect the faces of the community. This means that judges, lawyers, and
government officials must be men and women; they must reflect the diversity of their
communities; and they must share the ethnic and religious backgrounds of those who use
the judicial system. The rule of law is undermined if these individuals have different
religious beliefs, different ethnic backgrounds, and different colors of skin from those
subject to the laws. The diversity in the legal profession should mirror that of the society
in which it operates. 75
2. Judicial Ethics
The rule of law requires that judges adhere to a higher standard of conduct than
other professions. Men and women who sit as judges must be exemplars of virtue and
compliance with the law. 76 To ensure impartiality and fairness, the rules of judicial
conduct must prohibit judges from hearing cases in which they have a conflict of
interest. 77
It goes without saying that the rule of law cannot survive in the face of judicial or
governmental corruption. Unfortunately, corruption is rampant among officials in many
75 E.g., Joy Milligan, Pluralism in America: Why Judicial Diversity Improves Legal Decisions About
Political Morality, 81 N.Y.U. L. REV. 1206 (2006) (arguing that racial diversity in the judiciary
improves legal decisions).
76 See Rome Statute, supra note 66, art. 36(8).
77 See, e.g., id. art. 3(a).
18

countries. Where a judicial decision is for sale, justice cannot be provided. Furthermore, a
country that tolerates judicial bribery will typically not thrive economically, because
bribery bleeds assets from the economy, and both domestic and foreign investors may
refuse to make investments in the country. 80
3. Enforcement of Judgments
One of the most important shortcomings in the laws of developing countries is the
lack of effective procedures to enforce judicial orders. 78 The lack of effective
enforcement procedures leads to a general disrespect for the laws and legal institutions,
including courts and judges. It is vitally important that legal judgments be enforceable,
and that those who lose in the courts be required to comply with court orders.
V. Conclusion
As stated at the outset of this article, the rule of law serves as the bedrock for building a
structure of ordered liberty and progress in civil society. In this context, the rule of law
provides a structure for the realization and protection of human rights and other civil,
political, economic and social rights; it provides a structure for sound economic
development; it provides for the fair and equal treatment of everyone under the law and
the protection of procedural rights in both criminal and civil law contexts; and it ensures
that institutions in the various branches of government will carry out their legislative,
executive, or judicial functions effectively.
The rule of law does not create a civil society. However, it provides a structure for
the realization of a civil society where human efforts can bear fruit, where individuals can
80 See Tatyana Khavanska, Corruption and the Ukrainian Economy, COMMERCE MAGAZINE, March 2007,
at 14 (“Corruption distorts economic decision-making and deters investment, undermines competitiveness
and,ultimately weakens economic growth.”).
78 See Fundamental Freedoms, supra note 12, art. 46.
19

plan ahead and organize their efforts to achieve important goals, and where human values
can be realized to a reasonable extent.
Judge Samuel L. Bufford has served since 1985 as a United States bankruptcy judge in
Los Angeles, in the Central District of California. He is chair-elect of the ABA National
Conference of Federal Trial Judges.
20