Bufford Defining the Rule of Law

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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
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Bufford Defining the Rule of Law

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