Reader Leoncio Contreras e-mailed me the excerpt below from the November 20, 2011
Philippine Daily Inquirer column of UP sociology professor Randy David entitled
“Rule of law and public esteem”. Mr. Contreras headlined the e-mail
“‘Rule of Law’ is a misnomer. The more accurate phrase would be ‘Rule According to Law’” accompanied by this note: “From my favorite columnist, Randy David on his PDI column Nov. 19. Thought of you having already read the whole article, the opening I like most. Sharing with you.”
The excerpt from Randy David’s column (
italicization mine):
The arrest the other day of former President Gloria Macapagal-Arroyo on charges of electoral sabotage has been hailed by those who seek to make her accountable for her past actions as the triumph of the rule of law. Her family, lawyers, and allies, on the other hand, have called her arrest a mockery of the law, drawing attention to the unusual haste in which the investigation was conducted, the charges were filed, and the arrest warrant issued.
Though they see differently, both perspectives proceed from a legal standpoint. People think this is as it should be under the rule of law. But, “rule of law” is a misnomer. The more accurate phrase would be “rule according to law.”
For, law itself does not rule. Political power belongs to the political system. Law is there to regulate and check the use of this power – to make sure it is not abused. The effective exercise of this function, however, rests on the law’s ability to demonstrate its autonomy from politics, money, religion, family and other social ties. Otherwise, the legal system sheds off its legitimacy, which is the sole basis of the respect it commands.
Being neither a lawyer nor a sociologist nor a political scientist, I’m inclined to comment only as a student of language with respect to Mr. Randy David’s very strong assertion that “rule of law” is a misnomer and that the more accurate phrase for it would be “rule according to law.”
I really can’t see the point in Mr. David’s wanting to change the public perception of the sense of the term “rule of law” at this time that it appears to be under heavy assault. From what I can gather, “rule of law” is a well-established concept in jurisprudence whose linguistic accuracy is beyond cavil.
Here’s
a definition of “rule of law” that I found in BusinessDictionary.com:
rule of law
Definition
Absolute predominance or supremacy of ordinary law of the land over all citizens, no matter how powerful. First expounded by the UK law Professor A. V. Dicey in his 1885 book “Introduction To The Study Of Law Of The Constitution,” it is based on three principles that (1) legal duties, and liability to punishment, of all citizens, is determined by the ordinary (regular) law and not by any arbitrary official fiat, government decree, or wide discretionary-powers, (2) disputes between citizens and government officials are to be determined by the ordinary courts applying ordinary law, and the (3) fundamental rights of the citizens (freedom of the person, freedom of association, freedom of speech) are rooted in the natural law, and are not dependent on any abstract constitutional concept, declaration, or guaranty.
I also found that “rule of law” as a concept and as a principle is duly recognized and embraced by the United Nations, as we can see in
the following declaration by the UN:
United Nations and the Rule of Law
Promoting the rule of law at the national and international levels is at the heart of the United Nations’ mission. Establishing respect for the rule of law is fundamental to achieving a durable peace in the aftermath of conflict, to the effective protection of human rights, and to sustained economic progress and development. The principle that everyone – from the individual right up to the State itself – is accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, is a fundamental concept which drives much of the United Nations work.
The principle of the rule of law embedded in the Charter of the United Nations encompasses elements relevant to the conduct of State to State relations. The main United Nations organs, including the General Assembly and the Security Council, have essential roles in this regard, which are derived from and require action in accordance with the provisions of the Charter.
“For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”
(S/2004/616)
Report of the Secretary-General on the
Rule of Law and Transitional Justice in
Conflict and Post-Conflict Societies
Based on this well-established and widely recognized meaning and character of the phrase “rule of law,” I really can’t see the wisdom and propriety of declaring that term “a misnomer” at this particularly tumultuous time in our national life. That seems to me akin to a cavalier rejection of “rule of law” as the lay public and the rest of the democratic world have always known and embraced it; indeed, it looks like a veritable attempt to change the rules of the game right in the middle of the game.
