ACCOUNTABILITY:
No matter who you are, if you break the law you must answer for your action and receive a sanction (e.g., prison, fine, barring from legal office). If a person commits a wrong or violates the rights of another, he or she should be held accountable, either through the formal state justice system or through customary/
traditional justice systems.
THE CONTENT OF LAWS:
The laws must protect the human rights of all persons, including the rights of the accused and the interests of victims. They must be clear, precise, prospective (i.e., they do not punish past conduct that was not illegal at the time), accessible, and they must allow citizens to understand their rights and obligations.
THE DRAFTING OF LAWS:
All citizens should know what government agency is responsible for drafting new laws, when the laws will be circulated for comment in advance of being passed, and how the individual citizen can have a voice in the law reform process. After the law is passed, the law must be published, and the public must be notified about the new law and their rights and obligations under it.
THE APPLICATION OF LAWS:
Laws must be applied equally,
independently, fairly, and non-arbitrarily by public officials.
PARTICIPATION IN DECISION-MAKING:
Citizens must have the opportunity to participate directly in the exercise of legislative, executive, and administrative decision-making with the goal of repairing the broken relationships between the state and society, increasing trust in, and the legitimacy of, the government and improving general compliance with the law.
SEPARATION OF POWERS:
There must be separation between the executive, legislature and the judiciary and the various powers of each should be clearly defined.
ACCCESS TO JUSTICE:
All citizens must have access to justice mechanisms to seek a remedy for grievances. In order for there to be access to justice, justice mechanisms must be affordable, close by, conducted in a language citizens understand, and citizens (who cannot afford it) should be granted the assistance of a lawyer. The justice system must serve the people and must work to inspire their trust and confidence.
Finally, citizens must understand their rights and obligations under the law and how to seek a remedy if their rights are violated.
SAFETY AND SECURITY:
Citizens should feel that they and their property are safe and secure. They should be protected from violence and abuse.
n E N D E X T R A C T for the Promotion of the Rule of Law [INPROL], 2015), http://inprol.
org/publications/14549/
defining-the-rule-of-law-and-related-concepts.
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CONSIDER
So what does this lack of a universal definition mean for people working to promote a strengthened rule of law? It does not diminish the fact that rule of law is seen as something good. Many of the principles we believe rule of law should uphold cross both geographi-cal and ideologigeographi-cal boundaries.20 As one scholar writes: “Rule of law appears to be widely accepted by people of different ideological persuasions. Christians, Buddhists and Muslims;
libertarians, liberals and Confucian communitarians; democrats, soft authoritarians, even socialists and neo-Marxists all find value in rule of law.”21
How has the concept of rule of law developed in your context?
It is important to recognize that defining rule of law is not about creating a checklist of actions a government should take to achieve the perfect rule of law. As we all know, there is no society that has achieved the perfect rule of law. Defining rule of law is about identi-fying an aspirational goal toward which both government officials and members of society commit to strive.
Therefore, this guide promotes the idea that more important than the end result of a single black-and-white definition of the rule of law is the process of engaging government officials and members of society in an open and participatory discussion in order to formulate a clear vision for rule of law for their own society. In other words, the words matter less than what we understand them to mean.
Western rule of law theories and concepts have mainly developed in the English language. Sometimes these concepts do not easily translate, in the literal sense, into different languages.
Mandarin Chinese: Chinese phrases do not always use prepositions, so the term for “rule of law,” consisting of only two words, meaning “law”
and “govern,” has been translated as both “rule of law” and “rule by law”
in Chinese-English dictionaries. The translation sometimes also suggests
“law and order” or “ruling the country according to law.”
Source: Josh Chin, “’Rule of Law’ or ‘Rule by Law’? In China, a Preposition Makes All the Difference,”
Wall Street Journal (blog), October 20, 2014, http://blogs.wsj.com/chinarealtime/2014/10/20/rule-of-law-or-rule-by-law-in-china-a-preposition-makes-all-the-difference/.
French: It has been argued that the essence of the term “rule of law” is better translated as prééminence du droit. The United Nations and regional bodies generally apply the more formalistic état de droit.
Source: Council of Europe, The Principle of the Rule of Law, Report of the Committee on Legal Affairs and Human Rights, Doc. 11343 (July 6, 2007), http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.
asp?FileID=11593&lang=en.
Myanmar: Rule of law “is not an attractive concept . . . . We do not usually equate the rule of law with justice. It has connotations of pacifying, subjugating people. I think most people don’t really understand what it means.”
Source: Thomas Fuller, “Those Who Would Remake Myanmar Find That Words Fail Them,” New York Times, July 19, 2015, http://www.nytimes.com/2015/07/20/world/asia/those-who-would-remake-myanmar-find-that-words-fail-them.html.
The Challenge of Language
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This rule of law vision serves as a reference point to guide the actions and decisions taken by the government about necessary changes to be made within society to achieve a strength-ened rule of law.
Once a rule of law vision has been identified, the critical next step is to determine how best to achieve that vision. This guide proposes that the framework for achieving this vision is the five elements of a “rule of law culture.”
CHAPTER 1 Part 2 ENDNOTES
16 UNSC, “Rule of Law and Transitional Justice,” 4.
17 Vivienne O’Connor, Practitioner’s Guide: Defining the Rule of Law and Related Concepts (Washington, DC: International Network for the Promotion of the Rule of Law [INPROL], 2015), 9.
18 Ibid., 7.
19 Camino Kavanagh and Bruce Jones, Shaky Foundations: An Assessment of the UN’s Rule of Law Support Agenda (New York:
Center on International Cooperation, New York University, 2011), 24,http://cic.es.its.nyu.edu/sites/default/files/kavanagh_rol.pdf.
20 See, for example, Ghaleb Ghanem’s Rule of Law, http://www.acrli.org/Files/pdf2008/CompleteBook.pdf (in English, Arabic, and French). Dr. Ghanem is the president of the Lebanese Council of State.
21 Randall Peerenboom, “Human Rights and Rule of Law: What’s the Relationship?” Research Paper no. 05-31, Public Law and Legal Theory Research Paper Series (University of California, Los Angeles, School of Law, 2005), 3.
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