Rule of Law and Separation of Powers

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The rule of law is a legal maxim that provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. The rule of law stands in contrast to the idea that the leader is above the law, a feature of Roman law, Nazi law, and certain other legal systems.   At least two principal conceptions of the rule of law can be identified: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from the rule of law.

Rule of law has at least three meanings. First, rule of law is a regulator of government power. Second, rule of law means equality before law. Third, rule of law means procedural and formal justice. We will take up these meanings of rule of law one by one.   First, as a power regulator, rule of law has two functions: it limits government arbitrariness and power abuse, and it makes the government more rational and its policies more intelligent. In contrast, a key aspect of rule of law is "limitation;" i.e., rule of law puts limits on the discretionary power of the government, including the power to changes laws. Second, if the government is to be restricted in its exercise of discretion, the government has to follow legal procedures that are pre-fixed and pre-announced. For example, in constitutional and criminal law, there is a prohibition on "ex post facto" laws, that is, no one should be punished for a crime not previously defined in law. In other words, the government cannot simply define a new crime and apply the new definition retrospectively.  Rule of law as a constraint on government power is well recognized, but its cognitive value in enhancing government's rationality is often less understood. Rule of law not only limits the arbitrariness of the government, it also makes the government more intelligent and articulate in its decision making. For one example, as Professor Stephen Holmes writes, only a constitution that limits the capacity of political decision makers to silence their sharpest critics can enhance the intelligence and legitimacy of decisions made. For another example, the key reason why liberal democrats do not believe in the pure will theory of legality is that, without rule of law as a limit, popular will can easily be corrupted by passions, emotions and short-term irrationalities. As such, liberal democrats demand rule of law because it helps us to behave according to our long-term interest and reason. The second meaning of rule of law, according to Dicey, is equality before law. Not only that, no man is above the law, but that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.Though a soldier or a clergyman incurs from his position legal liabilities from which other men are exempt, he does not (speaking generally) escape thereby from the duties of an ordinary citizen. To Dicey, even in 1915 this principle of rule of law was not universally true among the liberal democratic countries of Europe. In England the idea of legal equality had been "pushed to its utmost limit" by 1915, but in France the officials were "to some extent exempted from the ordinary law of the land, protected from the jurisdiction of the ordinary tribunals, and subject in certain respects only to official law administered by official bodies" (Dicey, 1982, p. 115). By now, however, equality before the law is a universally recognized principle in all liberal democratic countries,...
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