Bufford Defining the Rule of Law

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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
Page 1 and 2: I. Introduction Defining the Rule o
Page 3 and 4: Kennedy stated, in his 2006 address
Page 5 and 6: 1948. 7 In this Declaration, the Un
Page 7 and 8: The rule of law also provides that
Page 9 and 10: aspirational, rather than mandatory
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Page 15 and 16: enforcing legitimate expectations.
Page 17 and 18: political party, the law should pro
Page 19 and 20: countries. Where a judicial decisio

Bufford Defining the Rule of Law

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