1.5: Rule of Law

Figure \(\PageIndex{1}\): Rule of law can be complicated: above, a lawsuit alleging wrongful employment termination begins in court in the State of Washington, 2005.

For much of human history, law was simply the will of the ruler. Democracies, by contrast, have established the principle of the rule of law for rulers and citizens alike.

EQUAL ADHERENCE TO LAW

The rule of law protects fundamental political, social, and economic rights and defends citizens from the threats of both tyranny and lawlessness. Rule of law means that no individual, whether president or private citizen, stands above the law. Democratic governments exercise authority by way of the law and are themselves subject to the law’s constraints.

Citizens living in democracies are willing to obey the laws of their society because they are submitting to their own rules and regulations. Justice is best achieved when the laws are established by the very people who must obey them. Whether rich or poor, ethnic majority or religious minority, political ally of the state or peaceful opponent—all must obey the laws.

Figure \(\PageIndex{2}\): In democracy, trials are open to the public. Here, a group of American teens gets a civics lesson and a symbolic choice.

The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.

DUE PROCESS

In every society throughout history, those who have administered the criminal justice system have held power with the potential for abuse and tyranny. In the name of the state, individuals have been imprisoned, had their property seized, have been tortured, exiled, and executed without legal justification and often without formal charges ever being brought. No democratic society can tolerate such abuses.

Every state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the state enforces its laws must be public and explicit—not secret, arbitrary, or subject to political manipulation—and they must be the same for all. This is what is meant by due process.

In order to implement due process, the following rules have evolved in constitutional democracies:

• No one’s home can be searched by the police without a court order showing that there is good cause for such a search. The midnight knock of the secret police has no place in a democracy.
• No person shall be held under arrest without explicit, written charges that specify the alleged violation. Moreover, under the doctrine known as habeas corpus, every person who is arrested has a right to be brought before a court and must be released if a court finds that the arrest is invalid.
• Persons charged with crimes should not be held in prison for protracted periods before being tried. They are entitled to have a speedy and public trial, and to confront and question their accusers.
• Authorities are required to grant bail, or conditional release, to the accused pending trial if there is little likelihood that the suspect will flee or commit other crimes.
• Persons cannot be compelled to be witnesses against themselves. This prohibition against involuntary self-incrimination must be absolute. As a corollary, the police may not use torture or physical or psychological abuse against suspects under any circumstances.
• Persons shall not be subject to double jeopardy; that is, they cannot be charged with the same crime a second time if they have once been acquitted of it in a court of law.
• Because of their potential for abuse by the authorities, so-called ex post facto laws are also proscribed. These are laws made after the fact so that someone can be charged with a crime even though the act was not illegal at the time it occurred.
• Cruel or unusual punishments are prohibited.