What ex­actly is the rule of law?

The Witness - - OPINION - Martin van Staden • Martin van Staden is a third­year LL.B law stu­dent at the Univer­sity of Pre­to­ria, south­ern African re­gional di­rec­tor of African Stu­dents for Lib­erty, and an in­tern at the Free Mar­ket Foundation. He writes in his own ca­pac­ity and does n

THE “rule of law” has be­come some­what of a buzz phrase that politi­cians and ac­tivists in civil so­ci­ety use quite lib­er­ally.

It has of­ten been used to de­note the op­po­site of its true mean­ing, thus we risk it be­ing ren­dered mean­ing­less as a whole. But such a con­cept does ex­ist, in our law and, more im­por­tantly, philo­soph­i­cally.

Sec­tion 1(c) of the Con­sti­tu­tion states that a foun­da­tional value of the South African State is “the supremacy of the Con­sti­tu­tion and the rule of law”.

Usu­ally, at­ten­tion is paid only to the first part of this supremacy clause, while the rest is ig­nored as use­less filler.

The rule of law can best be de­scribed as the op­po­site of the rule of peo­ple. All peo­ple are to be held to the same stan­dard, re­gard­less of their so­cial stand­ing or their per­sonal con­nec­tions with those in power.

There is “dis­cre­tionary rule” or “ar­bi­trary rule” when peo­ple, and not ob­jec­tive law, pre­vail in gov­ern­ing a mod­ern so­ci­ety.

Friedrich Hayek, a renowned Aus­trian econ­o­mist and le­gal the­o­rist, said in The

Con­sti­tu­tion of Lib­erty, that civilised liv­ing is only pos­si­ble when in­di­vid­u­als act in ac­cor­dance with cer­tain rules. Th­ese rules de­vel­oped un­con­sciously (not de­ lib­er­ately) over cen­turies, in­deed mil­len­nia, as hu­man be­ings re­alised that their in­ter­ests of­ten con­flicted.

If they were de­lib­er­ate, it would “rank among the great­est hu­man in­ven­tions”. Like lan­guage and money, the law came about spon­ta­neously with­out be­ing con­sciously in­vented.

It is thus that the mere ex­is­tence of an act of Par­lia­ment based on po­lit­i­cal con­sid­er­a­tions can­not be said to be an in­stance of the rule of law. If it is not based on true law, it is merely a man­i­fes­ta­tion of the ar­bi­trary rule of peo­ple.

We were not taught that we are not al­lowed to mur­der or hurt oth­ers be­cause sched­ule one of the Crim­i­nal Pro­ce­dure Act says we can’t.

Look­ing at le­gal codes dat­ing back mil­len­nia, it is clear that there has ex­isted a uni­ver­sal con­sen­sus in hu­man civil­i­sa­tion that cer­tain con­duct is sim­ply not al­lowed.

Hayek, in this con­text, refers to the “de­lim­i­ta­tion of in­di­vid­ual spheres”. For­mu­lated dif­fer­ently, you can do as you please to the ex­tent that it does not in­vol­un­tar­ily harm an­other.

Hayek sums up the con­cept of the rule of law in the fol­low­ing ex­cerpt: “It is be­cause the law­giver does not know the par­tic­u­lar cases to which his rules will ap­ply, and it is be­cause the judge who ap­plies them has no choice in draw­ing the con­clu­sions that fol­low from the ex­ist­ing body of rules and the par­tic­u­lar facts of the case, that it can be said that laws and not men rule.

“Be­cause the rule is laid down in ig­no­rance of the par­tic­u­lar case and no man’s will de­cides the co­er­cion used to en­force it, the law is not ar­bi­trary.

“This, how­ever, is true only if by ‘law’ we mean the gen­eral rules that ap­ply equally to ev­ery­body.”

Thank­fully, the rule of law is part and par­cel of the South African le­gal regime and car­ries con­sti­tu­tional strength.

In fact, it has been part of our com­mon law long be­fore the Con­sti­tu­tion was con­ceived, which de­spite apartheid, gave South Africa a highly de­vel­oped and rich le­gal cul­ture which other tyran­ni­cal states could not achieve.

Un­for­tu­nately, where the rule of law was needed most — to pro­tect in­di­vid­ual rights — our former op­pres­sive Par­lia­ment sim­ply passed leg­is­la­tion which could over­ride any com­mon­law prin­ci­ple. What is needed to­day is an un­der­stand­ing of the con­cept. The Con­sti­tu­tion does not reign supreme in iso­la­tion; Sec­tion 1(c) clearly states “and the rule of law”.

If the South African civil­po­lit­i­cal so­ci­ety in­ter­nalises the idea that we can­not sim­ply pass leg­is­la­tion for ev­ery per­ceived is­sue (e.g. smok­ing ban, reg­u­la­tion of the me­dia, new taxes, etc.) that treats our fel­low cit­i­zens un­justly and un­equally, the rule of law can be said to ex­ist sub­stan­tively.

— Free Mar­ket Foundation.

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