Bufford Defining the Rule of Law

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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
Page 1 and 2: I. Introduction Defining the Rule o
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Bufford Defining the Rule of Law

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