Kara Sears
The concept of the rule of law is widely discussed in contemporary political theory. It is generally understood as a durable system of laws, institutions, norms, and community commitments that deliver four universal principles: accountability, just law, open government, and accessible and impartial justice. In a dictatorship, the leader is understood to have total power, but some theorists, such as Rousseau, argue that a dictator's power is limited by the law. This essay will explore the complex relationship between the rule of law and dictatorship, examining whether these two concepts can coexist or if they are inherently contradictory.
| Characteristics | Values |
|---|---|
| Rule of law | A durable system of laws, institutions, norms, and community commitment |
| Rule by law | A dictatorship |
| Rule of law | A mechanism of mediation between state authorities and social actors |
| Rule of law | A foundation for communities of justice, opportunity, and peace |
| Rule of law | A system that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice |
| Rule of law | A system that upholds fundamental rights |
| Rule of law | A system that correlates to higher economic growth, greater peace, more education, and improved health outcomes |
| Dictatorial power | A temporary and rare suspension of laws to protect the existing constitution |
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What You'll Learn
Rule of law vs rule by law
The Rule of Law is a political ideal that demands that everyone, regardless of their status in society, is equal under the law. It is grounded in philosophical and moral concepts, and it requires that people in positions of authority exercise their power within a framework of well-established public norms, rather than in an arbitrary manner based on their personal preferences or ideology. The Rule of Law also requires that citizens respect and comply with legal norms, even when they disagree with them.
In contrast, Rule by Law is a concept that places the governing authority above the law. This means that the government has the power to create and execute laws as it sees fit, regardless of the effect on the larger freedoms of the people. Rule by Law is often used by governments to shape people's behaviour and persuade them to agree with policy decisions they would otherwise disagree with.
The Rule of Law is often associated with the concept of natural law, which claims that everyone must be treated under the same laws and possess the same rights because we all belong to the larger human community. It is also associated with the idea of a non-arbitrary framework, where the law acts as a mechanism of mediation between state authorities and social actors.
Rule by Law, on the other hand, can lead to a dictatorship, where the government has the power to create and enforce laws that serve their own interests, rather than the interests of the people. This can result in a fundamental contradiction with fundamental rights, as seen in the example of Nazi courts, where despicable sentences were legally justified.
It is important to distinguish between "the Rule of Law" and "a rule of law". The latter refers to specific legal rules, such as the rule against perpetuities or tax filing deadlines, while the former refers to the ascendancy of law and the institutions of the legal system in a system of governance.
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Rousseau's theory of dictatorship
Jean-Jacques Rousseau, an eighteenth-century philosopher, is known for his work, 'The Social Contract', which presents a theory of political legitimacy. In it, he suggests that a dictator can be necessary to protect liberty, observing that:
> a Dictator could in some cases defend the public freedom without ever being in a position to threaten it.
Rousseau's version of freedom meant freedom from social ties and dependencies within traditional society. He believed that a social contract was necessary to guarantee equality and liberty as superior social values. In certain cases, he recommended the establishment of an additional body called the "tribunate" to maintain a balance between sovereign and government, and between the government and the people. In rare cases, he acknowledged that dictatorship may be necessary to save the state from collapse, but that it should only be appointed for a short term due to its volatile nature.
Rousseau's ideas have been criticised for their influence on totalitarian regimes, with some arguing that his writings contain the seeds of modern totalitarianism.
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Dictators and law-making
Dictatorships are characterised by a leader or a group of leaders who hold governmental powers with few to no limitations. The dictator maintains control by influencing and appeasing their inner circle, which includes advisers, generals, and other high-ranking officials, and by repressing any opposition.
Dictatorships can be formed in several ways, including through a military coup or a self-coup. In a self-coup, elected leaders make their rule permanent, often by establishing one-party rule and suppressing opposition. In Latin America in the 19th century, dictators were self-proclaimed leaders who led private armies and tried to establish control over a territory. Later 20th-century dictators in Latin America were national leaders, often put in power by nationalistic military officers, and they allied themselves with a particular social class. In the new states of Africa and Asia after World War II, dictators quickly established themselves on the ruins of unworkable constitutional arrangements inherited from colonial powers.
The laws in a dictatorship are often manipulated to serve the interests of the dictator and their inner circle. Dictatorships may influence election results through electoral fraud, intimidation or bribing of candidates and voters, manipulation of electoral laws, and restricting who may run as a candidate. They may also use state resources such as media control to maintain power. The laws enacted by dictatorships are often in contradiction with fundamental rights, as seen in Nazi Germany, where the courts' sentences were based on laws that contradicted the rule of law and fundamental rights.
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Rule of law and economic growth
The rule of law is widely assumed to be essential for economic growth. However, the term "rule of law" is used quite widely, and there is no single objective definition. Nevertheless, two broad conceptions are prominent. The first, referred to as a "narrow," "formal," or "instrumental" conception, examines the formal characteristics that law must have if a legal system is to provide a non-arbitrary framework around which subjects can form expectations and live their lives. This notion of the rule of law essentially concerns the character of law as a mechanism of mediation between state authorities and social actors.
Economic growth depends on many factors, but key among those factors is adherence to the rule of law and the protection of property rights and contractual rights by a country's government so that markets can work effectively and efficiently. Without a legal system that enforces contracts, people would be unlikely to enter into contracts for current or future services due to the risk of non-payment, making it difficult to transact business and slowing economic growth.
The World Bank considers a country's legal system effective if it upholds property rights and contractual rights. The World Bank has developed a ranking system for countries' legal systems based on effective protection of property rights and rule-based governance using a scale from 1 to 6, with 1 being the lowest and 6 the highest rating. In 2012, the world average ranking was 2.9. The three countries with the lowest ranking of 1.5 were Afghanistan, the Central African Republic, and Zimbabwe; their GDP per capita was $1,000, $800, and $600, respectively. Afghanistan is cited by the World Bank as having a low standard of living, weak government structure, and lack of adherence to the rule of law, which has stymied its economic growth.
The rule of law has been associated with economic growth through four distinct causal mechanisms: through the provision of security of person, through security of property and enforcement of contracts, through checks on government, and through checks on corruption and private capture. While the literature on the rule of law and economic growth has become one of the more dynamic areas of theoretical and empirical work in political science, economics, and law, the correlation among different components of the rule of law concept is not tight among developing countries, and some inferences about the effects of property rights protection may not be warranted. For example, the well-known paper by Acemoglu, Johnson, and Robinson (2001) addresses the determinants of economic growth over the long run, focusing on the role of institutions for the protection of property rights. However, their instrumental variables approach is incapable of distinguishing between competing institutional hypotheses and, therefore, cannot be taken as a demonstration of the primacy of a property rights story. Instead, a complex or cluster of institutional shortcomings is likely responsible for continuing weak economic performance over the long run.
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Rule of law and peace
The rule of law is a durable system of laws, institutions, norms, and community commitments that deliver four universal principles: accountability, just law, open government, and accessible and impartial justice. The rule of law is the foundation for communities of justice, opportunity, and peace, underpinning development, accountable government, and respect for fundamental rights. Research shows that the rule of law correlates to greater peace, with more peaceful countries enjoying greater rule of law.
The concept of the rule of law is distinct from the "rule by law", which is often associated with dictatorships. In a dictatorship, a ruler may have the authority to issue generally binding laws, but they are not bound by these laws themselves and can act arbitrarily. This is in contrast to the rule of law, which requires a non-arbitrary framework that provides a mechanism of mediation between state authorities and social actors.
While it is possible for a dictatorship to have some legal framework, the rule of law in its true sense cannot exist in a dictatorship. This is because the rule of law requires a system of checks and balances, where government and private actors are accountable under the law, and where the laws are just and impartial. In a dictatorship, the ruler is often above the law and can act arbitrarily, without regard for legal limitations or the rights of the governed.
However, it is important to note that the transition from a dictatorship to the rule of law is possible and has been advocated by scholars such as Rousseau, who suggested that dictatorial power could be used in "rare and manifest" cases to save the constitution or the "fatherland". In such cases, the duration of dictatorial power should be limited to a "very brief term" to prevent tyranny and the seizure of state power.
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Frequently asked questions
The rule of law is a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice.
A dictatorship is a form of government where a single leader or a small group of people hold all the power without effective checks on that power.
It depends on the interpretation. According to some, a dictatorship is characterized by a lack of rule of law, as the leader holds all the power and can make and break laws at will. However, others argue that a dictator is bound by certain legal limitations and can only temporarily derogate from the laws to protect the existing constitution or in rare and manifest cases where it is necessary to suspend the laws.
Research shows that a strong rule of law correlates to higher economic growth, greater peace, more education, and improved health outcomes. A lack of rule of law can hinder these positive outcomes and lead to arbitrary decision-making, human rights violations, and a breakdown of social order.
