0″If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” James Madison, Federalist Paper No. 51 (1788)
James Madison’s quote from the Federalist Papers gets at the heart of the problem that even a government of law is ultimately “administered by men over men.” The framers of the U.S. Constitution addressed this problem by dividing power among the different branches of government (legislative, executive, and judicial). This framework for government, known as the separation of powers, ensures that no one person is able to gain absolute power and stand above the law. Each branch of our government has some level of control or oversight over the actions of the other branches.
The rule of law does not depend upon a U.S.-style separation of powers. In a parliamentary system, for example, the powers of the executive and legislative branches are combined; procedures such as “no confidence” votes and regularly scheduled elections serve as a check on the party that controls the parliament. The key point is that every form of government has to have some system to ensure that no one in the government has so much power that they can act above the law.
“[N]either laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” —U.S. Court of Appeals Judge Diane Wood, “The Rule of Law in Times of Stress” (2003)
The rule of law and the ABA World Justice Project~ In 2007, ABA President William Neukom established the World Justice Project. The World Justice Project recognizes the problem that “the ‘rule of law’ is a frequently used term that is rarely defined.” The World Justice Project has proposed a working definition of the rule of law that comprises four principles: 1. A system of self-government in which all persons, including the government, are accountable under the law 2. A system based on fair, publicized, broadly understood and stable laws 3. A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced 4. Diverse, competent, and independent lawyers and judge