4.2 Rule of law
4.2.1 A brief note on the historical origins of the rule of law
The rule of law is said to have no single source because it has congealed roots in the slow and unplanned events of the Middle Ages.6 The dawn of the Fifth century witnessed a rise in Greek and Roman philosophical dialogues on the role that the law played in
5 Tamanaha On the Rule of Law 1-141.
6 Tamanaha On the Rule of Law 15 plots the Middle Ages as starting from the 5th century collapse of the Roman Empire to the 15th and 16th centuries Renaissance and Reformation periods respectively.
Although it is argued that Greek scholars could have contributed to the framing of the rule of law, it is widely accepted that the rule of law "took root" in the West during the Middle Ages. See Tamanaha On the Rule of Law 7-15, 18; Sealy The Athenian Republic: Democracy or the Rule of Law? 146-149.
Finer The History of Government 982 notes that major Greek political literature on the rule of law is in fragmentary quotes except Plato's 13th century writings. Hence, the reason why Tamanaha refers to the origins of the rule of law as taking root during the Middle Ages.
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society. That is to say, one of Plato's latter dialogues, "The Laws", posits the notion that a government must be subservient to the law.7 In other words, Plato stresses the need for "a code of law as an instrument of government".8 Plato's work was subsequently refined by his apprentice, Aristotle in his work "The Politics", wherein he compared the rule of man, 'passion', with the rule of law, 'reason' to enlighten people on why a government must be bound by the law as a means of preventing the abuse of power and arbitrary rule.9 Both Plato and Aristotle agree that laws ought to be promulgated for the common good of everyone. As Aristotle10 notes:
[L]aws, when good, should be supreme; and that the magistrate or magistrates should regulate those matters only on which the laws are unable to speak with precision owing to the difficulty of any general principle embracing all particulars. But what are good laws has not yet been clearly explained; the old difficulty remains. The goodness or badness, justice or injustice, of laws varies of necessity with the constitutions of states. This, however, is clear, that the laws must be adapted to the constitutions. But if so, true forms of government will of necessity have just laws, and perverted forms of government will have unjust laws.
The works of the aforementioned Greek philosophers had a notable effect on Roman legal philosophers, most notably on Cicero, who highlighted in "De Legibus", that the law must be enacted for the good of the whole community, thereby subjecting the law to principles of justice.11 The works of the aforementioned philosophers would play a great role in developing the rule of law in Europe. Worthy of note is that following Emperor Constantine's shift of the Roman Empire's capital to Constantinople, thus establishing the Eastern Roman Empire, the western part of the Roman Empire underwent a steady and
7 Plato The Laws. Trans. Trevor Saunders 21, 26-26, 32. Regarding a government that is subject to the law, Plato contends that: "The Guardians [of laws], whose tenure and powers make them tolerably independent of popular pressures, should themselves obey the laws in all things, and interpret them when necessary in the spirit in which they were framed. Yet even they are not exempt from the general rule that every official must be accountable for his conduct: to scrutinise their record and that of all other officials, there is a powerful board of Scrutineers who can themselves be called to account if occasion arises. One authority must check another; firm government must not be allowed to degenerate into tyranny".
8 Plato The Laws. Trans. Trevor Saunders 25-26.
9 Aristotle Politics. Trans C.D.C. Reeve 82-100.
10 See Jowett The Politics of Aristotle: Introduction and Translation XI.
11 See Zetzel On the Commonwealth: And, on the Laws 32b-41, 42-48, 48-52.
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protracted decline triggered by frequent invasions from the early fourth and fifth centuries Germanic tribes.12
As a result, medieval society resorted to isolation by surrounding themselves with high solid walls to keep away menacing groups of plunderers or conquests by neighbouring kings.13 In addition to the above, there was no autonomous and professional organ of jurists as had previously existed during the pinnacle of Roman rule.14 Customary law and the feudal system coexisted and merged with ecclesiastical and Roman law.15 Furthermore, it is during the Middle Ages that the Roman Catholic Church was the only religious institution that traversed the entire Western empire.16 The Roman Catholic Church, possessed sophisticated official structures, and was a major hindrance to development in the West.17 Tamanaha18 posits that the hindrance to development was because the Roman Catholic Church immersed the community in Catholic doctrine or orthodoxy which disregarded the importance of commerce, proscribed charging interest on loans and required unquestioning devotion towards the Church. Reason was viewed as perilous to the future of the Church.19
During the late eleventh and early twelfth centuries, the forerunners of the state system, materialised under the guise of effective tax collection methods, the courts, and the
12 See Pirenne Medieval Cities 46-47; Tamanaha On the Rule of Law 15-16; Costa "The Rule of Law: A Historical Introduction" 73-149.
13 See Van Creveld The Rise and Decline of the State 50-52 who further notes that the deadlock caused by the increased pillaging resulted in travel being unsafe as well as a drastic decrease in merchants, a factor which negatively affected trade and the economy. See also Pirenne Medieval Cities 46.
14 Finer The History of Government 857-858; Tamanaha On the Rule of Law 16.
15 Finer The History of Government 857-858; Tamanaha On the Rule of Law 16.
16 Tamanaha On the Rule of Law 18-20; Tamanaha Law as a Means to an End 74, 131-135.
17 Tamanaha On the Rule of Law 18-20; Tamanaha Law as a Means to an End 74, 131-135.
18 Tamanaha On the Rule of Law 18-20; Tamanaha Law as a Means to an End 74, 131-135.
19 Writing on reason, the law and the Church, Thomas Aquinas argues that reason is compatible with Church doctrine. Aquinas contends that judges are subject to the law, and that the law is founded on reason. Aquinas further claims that sovereigns could resolve to be subject to the law, although they are, as makers of the law, above it. Aquinas however acknowledges that divine and natural law was supreme and that final judgment on a person's wrongdoing could only be passed by God. See Figgis Studies of Political Thought: From Gerson to Grotius,1414-1625 6-7; Gilby Principality and Polity 127, 142-144, 173-175; Finer The History of Government 862; Tamanaha On the Rule of Law 19; Neumann The Rule of Law 55.
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growth in legally trained people under the watchful eye of the nobility.20 Furthermore, the rediscovery of the Justinian code and Aristotle's work, along with the founding of the Universities of Bologna, Paris, Oxford and Cambridge was a signal of a noteworthy shift in the Middle Ages as the number of those educated increased.21 The late eleventh and early twelfth centuries also witnessed an increase in economic activity such as trade and production and also heralded the beginning of the expansion of the West.22 Within this broad historical context, a number of crucial medieval developments to the rule of law can be deduced: "the outcome of the power struggle between popes and kings", the development of "Germanic customary law", "the Magna Carta", the advent of Protestant Reformation and the Age of Enlightenment.23
4.2.1.1 The power struggle between popes and kings
The first development, "the power struggle between popes and kings" can be understood through medieval society's Christian beliefs.24 During such time, the church was the only authority as all learning and political activities were carried out through it.25 A hallmark typical of the Western Empire was the emperor's particular position which constituted sacerdotal and regal power. Ullmann26 notes that the emperor's commands and decrees were the laws and decrees of "divinity made known through the emperor". Hence, "within the Christianised Roman Empire", the emperor was both the priest and the king.27 However, following the downfall of the Western Empire and the emergence of the feudal system, primacy in power transferred to the clergy and a war for political supremacy was
20 Tamanaha On the Rule of Law 15.
21 Tamanaha On the Rule of Law 15. Also see Swart Contending Interpretations of the Rule of Law in South Africa 30.
22 Tamanaha On the Rule of Law 18.
23 Tamanaha On the Rule of Law 15-32.
24 Tamanaha On the Rule of Law 18-27; Finer The History of Government 857.
25 Southern Western Society and the Church in the Middle Ages 19; Finer The History of Government 856.
26 Ullmann A History of Political Thought 33.
27 Ullmann A History of Political Thought 33.
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waged between popes and medieval monarchs.28 Of note is that Roman popes sought to extend their dominance over both religious and secular realms by adopting authoritarian and juridical qualities through the issuing of binding orders.29 Much like emperors preceding them, popes delegated themselves as the human agents of divine and natural law which in the medieval period regulated positive law as well as monarchs, with the only mitigating element on papal supremacy being the virtual weakness of their military power as compared to monarchs.30 The church was in control of coronation ceremonies including the Germanic secular belief that a King's principal duty was to protect the communities' law.31
Significantly this oath was given to the community as well as the church and was confirmed through religious oath taking.32 Tamanaha33 asserts that "society was governed by a law identified with Christian justice", and like everyone else, "the monarch as a Christian was subject to this law". As a result, the monarch would make an oath
"confirming his subjugation to the higher (natural, divine and customary) law and the positive law".34 The voluntary affirmations and repeated oath-taking could be construed as confirmation that monarchs were bound by natural, customary, divine and positive law which reinforced the notion that even rulers were obligated to obey the law. Furthermore, the subjugation of the monarch to oath taking reflects the supremacy of Christ during coronation ceremonies, which could be regarded and construed as medieval society's version of the rule of law.
28 Tamanaha On the Rule of Law 21-23.
29 Tamanaha On the Rule of Law 21-23.
30 Tamanaha On the Rule of Law 21-23. Also see Ullmann A History of Political Thought 101.
31 Tamanaha On the Rule of Law 21-23.
32 Tamanaha On the Rule of Law 21-23. Also see Morrall Political Thought in Medieval Times 24.
33 Tamanaha On the Rule of Law 23.
34 Tamanaha On the Rule of Law 23.
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4.2.1.2 The development of Germanic customary law
The second medieval development in the rule of law tradition is the impact of Germanic customary law and the principle therein that a ruler is subject to, and bound by the law.
Germanic customary law exerted influence on medieval Europe's large regions such as Spain, France and parts of England.35 Germanic customs are recognised for embedding the notion that both the king and his subjects had a mutual responsibility to preserve the law from corruption and infringement.36 Kern37 further notes that rulers were bound by the law and were therefore proscribed from arbitrarily making new laws. Although, Kern38 and Tamanaha39 observe that in practice, the notion that the king was also bound by the law was not honoured, one could still deduce that Germanic customs amount to a crucial precursor to the principle of rule of law.
4.2.1.3 The Magna Carta
The third medieval development towards advancing the rule of law tradition is the 1215 Magna Carta.40 The Magna Carta, which today is revered by many as a source of the rule of law, liberal constitutionalism and due process in the United States of America,41 only
35 Kern Kingship and Law in the Middle Ages 70-72, 86-88; Tamanaha On the Rule of Law 23.
36 Morrall Political Thought in Medieval Times 16-17.
37 Kern Kingship and Law in the Middle Ages 70-71. Also see Morrall Political Thought in Medieval Times 16-17.
38 Kern Kingship and Law in the Middle Ages 86-88.
39 Tamanaha On the Rule of Law 24-25.
40 The Magna Carta (Translation) 1215 also known as the (Great Charter) is an agreement that guaranteed English political liberties. It was signed on the 15th of June 1215 at Runnymede by King John, following a revolt by the nobility against King John. The revolt was a result of King John's attempt to extract more financial resources from the nobility to fund war in France. Chapter 61 of the Magna Carta states that "twenty-five barons should be selected to ensure that the king upholds all of the provisions of the charter". Thus, when a king violates the law, the barons are authorised to seize the king's assets until he complies. Although this provision was not included in the subsequent reissues of the Magna Carta, it nonetheless imprinted the "memory of the barons' threat of military force against the king" which made the Magna Carta a "symbol of the supremacy of the law over the will of the king". Also see Holt Magna Carta 33-48.
41 Dunham "Magna Carta and British Constitutionalism" 26; Kurland "Magna Carta and Constitutionalism in the United States: The Noble Lie" 48-75.
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attained significance in England during the 17th century.42 The Magna Carta was a representation of the notion of protecting citizens from despotic kings by stating that "no free man is to be imprisoned, dispossessed, outlawed, exiled or damaged without"
undergoing "lawful judgement of his peers or by the law of the land".43 Such a clause identifies ordinary courts as the appropriate avenue of obtaining redress for wrongful conduct as opposed to the will of kings.
The Magna Carta was therefore an attempt at restraining the power of kings. On this note, Tamanaha44 notes, the Magna Carta signifies an attempt by citizens to use the law as a means of protection from a sovereign. The Magna Carta could therefore be viewed as an important source of the rule of law in that it restructured the legal relationship between a sovereign and the people and also added to the legal system the institutionalised components of a jury of peers and the courts.
4.2.1.4 Protestant Reformation and the Age of Enlightenment
The development of the rule of law did not end with the Magna Carta but is continuously visible in the events that occurred from the Sixteenth century to the Eighteenth century.
As already noted, the church's notions of natural and divine law had a stronghold on medieval society.45 As a result, the law was to some degree accompanied by notions of Christian justice. The monopoly held by the church was however broken with the advent of the Sixteenth century Reformation and the Eighteenth century Age of Enlightenment.
The Sixteenth and Eighteenth centuries witnessed the upsurge of Science; the separation of the temporal and sacred; the separation of natural and divine law from statutory and
42 Although the Magna Carta "was legally valid for no more than three months", it was later re-issued in 1216, 1217 and lastly in 1225 with the final version becoming enforceable law. Holt Magna Carta 33;
Radin 1947 Harv L Rev 1061.
43 Magna Carta (Translation) 1215 para 29. Also see Holt Magna Carta 33-36.
44 Tamanaha On the Rule of Law 25-27.
45 Figgis Studies of Political Thought: From Gerson to Grotius,1414-1625 153; Finer The History of Government 857-858.
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positive law.46 Accordingly, natural and divine law lost its stronghold over state affairs and legislative legal systems replaced customary legal systems.47
Of importance is that the advent of Protestant Reformation played a vital role in ending the church's stronghold on society.48 Essentially, the Reformation promoted individual thought and reason by declaring individuals as diviners of their religious lives.49 The Reformation became a precursor of the Age of Enlightenment, a period in which liberalism would be born. Tamanaha50 states that "the primary creed of the Enlightenment was the application of reason and science…". Enlightenment scholars applied the principles of logic and reason popularized by Natural Science, to moral, political, social, economic and legal fields of study.51 Thus, the unquestionable status of the traditions, customs and teachings of the church became the subject of scientific inspection. On this note, the rule of law became the end product of the Age of Enlightenment.
The Age of Enlightenment, the Magna Carta and the gradual separation of the state and church set the stage for the rise of liberalism. At the heart of liberalism lies the rule of law, under the guise of formal legality, wherein a society functions in terms of structured laws that confer freedom to individuals. For John Locke, liberty entails freedom from violence and restraint with the law assuming the role of preserving such freedom.52 Locke's argument is founded on a state of nature wherein everyone is equal, free and independent.53 Moreover, the idea of separation of powers between the executive and legislature in ensuring that government's conduct is in line with the law and that disputes are settled fairly is credited to Locke.54 Although the aforementioned is an extremely shortened account of Locke's theory, it nonetheless captures essential elements of the
46 Tamanaha On the Rule of Law 27-28.
47 Tamanaha On the Rule of Law 27-28.
48 Schmidtz and Brennan A Brief History of Liberty 99; Tamanaha On the Rule of Law 27, 39.
49 Tamanaha On the Rule of Law 27; Schmidtz and Brennan A Brief History of Liberty 99-100.
50 Tamanaha On the Rule of Law 39.
51 Tamanaha On the Rule of Law 39; Finer The History of Government Iii 1430-1431.
52 Locke The Second Treatise of Government 4, 49-50, 54.
53 Locke The Second Treatise of Government 4, 54.
54 Locke The Second Treatise of Government 49-50.
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liberal theory in the context of the rule of law. That is to say, the notion that all persons are equal before the law; that all persons ought to be free to act as they deem fit; and that a judiciary, within a government with a well-defined separation of powers, ought to be the adjudicator of disputes.
Locke's work set the stage for the future development of the rule of law. Notable is that Montesquieu, one of the great thinkers, in his 1748 work "L’Esprit des Lois", developed a theory of the separation of powers as a way of preventing governmental abuse and the preservation of liberty, which he described as "a right of doing whatever the laws permit".55 Montesquieu56 stresses that "power should be a check to power" so that the judicial, executive and legislative functions of government are possessed in separate hands. When contrasted with the preceding writers, Montesquieu devoted substantial attention to the role of the judiciary. From his perspective, the judiciary ought to be independent from the executive or legislature, although he contended the judiciary be composed entirely of juries as opposed to professional judges.57 For Montesquieu, the expense, burden and delays of judicial proceedings was a price worth paying for freedom and liberty.58
Without digressing from the current discussion, this thesis notes, drawing from Montesquieu's view that the burden and cumbersome task faced by the judiciary in developing constitutional values is a price worth paying for liberty. As already noted in the preceding Chapter, the task conferred on judges in developing the meaning and content of constitutional values, especially in judicial review cases, is a cumbersome one.
Thus, courts are encouraged to engage in judicial activism, where necessary and appropriate, when reviewing the decisions or laws passed by the executive or legislature.
55 Nugent The Spirit of the Laws 172-173.
56 Montesquieu argues that: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner".
See Nugent The Spirit of the Laws 173.
57 Nugent The Spirit of the Laws 37-46, 90-113, 194-199.
58 Nugent The Spirit of the Laws 92.