Rule of Law Standard TM

Our Rule of Law Standard TM is based on first principles of the Rule of Law that result in the participation of the public in the development and application of law.

It is a world first, a tool that subjects the Rule of Law to measurement, and therefore evaluation, before the Rule of Law breaks down, and it suggests avenues to rectify the breakdown of the rule of law

The focus of the Rule of Law Standards is on whether or not State legislation, or indeed other-sourced rules and regulations, complies with the basic first principles of the rule of law.

In sum, our Standard:

  • identifies specific instances of the failures of the rule of law, as and when they occur
  • allows for immediate and practical action to correct rule of law failures, as and when they occur
  • provides an overview of the extent to which the rule of law ha broken down
  • provides opportunity to develop and apply cost effective and efficient systemic corrections to prevent such breakdown of the rule of law in future.

What the Standard consists of

Our Standard consists of a set and subset categories of measurable variables relevant at superseding Levels of analysis of compliance with the rule of law. The measurable variables derive from analysis of commonly-accepted basic principles of the rule of law.

For instance, a commonly accepted principle of the rule of law is that law must be made known. Thus, one category of the Standard is a subset relating to “Publication”, and measurable variables within subset include questions such as, who is the publisher? Was the legislation, regulation or rule published by that publisher? Is the quality of publication adequate? Is the language of publication adequate? Is the form of publication (electronic, paper or other) appropriate? Was the publication available to the public, and timeously so? Is the publication archived properly? Was the author of the item published empowered to do so?  And so on.

Our Rule of Law Standard consists of a set of various subcategory Standards which together cover various aspects relevant to the rule of law. These relate variously to Drafting;  Promulgation; Publication and Commencement; Appointments, delegations and assignment; Potential Transgressor Identification; and Identification of Elements of Potential Transgressions; Application; Identifying Mechanics of Obtaining Objectives; Conssequences of non-compliance; and so on.

You can subscribe to any such subcategory of the Rule of Law Standard, depending on your prioritization and specific concerns, and can over time incrementally adopt further subcategories that will further enable you to identify and respond to specific instances of the breakdown of the rule of law in relation to your interests, so that they can inform the development of your policies and strategies to prevent further breakdown, as well as to recover from any existing breakdown of the rule of law that you are particularly concerned with.

Effect of adopting and measuring up to the Rule of Law Standard

Our experience is that the identification and correction of first instance failures in the rule of law is absolutely necessary to preempting a pervasive and general breakdown of the rule of law characterized by such things as widespread corruption, the exercise of arbitrary power by the state, nepotism and patronage relationships.

We also believe that the development and adoption of a Rule of Law Standard are the necessary (though obviously not sufficient) precondition to securing the rule of law, once it has broken down.

Who can use our Standard?

We offer our Rule of Law Standard, allied consultancy services and training to State and other drafters and appliers of original and amending legislation, and subordinate rules who, in doing what they are doing, must both comply with the rule of law themselves, and ensure as far as possible that potential transgressors comply with their rule, that the law is practically applicable and is effective in reaching its objectives.

Why now, a Rule of Law Standard?

The rule of law is an absolutely fundamental right. Perhaps even, it is the single fundamental right upon which all other rights derive.

Yet, although there are numerous applications and measurement tools with which to measure the state of the rule of law, there is a dearth of research into the actual causative factors that cause changes in the level of the Rule of Law.

In the vacuum of causal research, the common practice is to create a rule of law index characteristics of States or other entities that “have” the rule of law, and to measure the correlation of specific entities with the specific indices on that rule of law index. A high or low correlation is then taken as indicative of, respectively, the presence or absence of rule of law itself.

However, the pitfalls in this approach are firstly, the assumption that a change in the measurable indices reflect an increase or decrease in the rule of law, and secondly that therefore practical action to save or maintain the rule of law must be geared to causing an increase in the level of specific indices on that index that obtained a low correlation with the rule of law. In other words, it is thought that causing a change in what is seen as the effects of the rule of law, is the equivalent to causing the rule of law itself. In other words, the effects of the rule of law are treated as the cause of the rule of law and become the focus of change agent efforts to institute the rule of law.

Presumptions of our Rule of Law Standard

Our Standard, which has emerged in a long-in-development approach, does not see the effects of the rule of law as related to the cause of the rule of law. It does not assume that creating circumstances that correlate with the rule of law – by example reducing deaths in detention and so on – will generate the rule of law.

Instead, our starting point was a fundamental analysis of commonly-agreed principles of what the causative antecedents of the rule of law are, as developed over the ages and expressed by such as Aristotle, Magna Carta, Dicey, Raz and so on. We found on this analysis that, behind all commonly-agreed principles and the arguments that found them as to what would allow the rule of law to emerge,  the making and application of Law must be reasonable, logical and rational and, to the extent that this is the case, the Rule of Law can be regarded as being present, and to the extend that this is not so, the rule of law can be considered to be absent.

Further, we discovered that what makes a Law reasonable, logical and rational is the simplest thing to measure. For instance, in this sense, if law is not published, then it cannot be assumed that potential transgressors will know about it or act in accordance with it. And of that is the case, the presumption that we know the law musts fail, and the onus musts then shift to those who had wanted to depend on that presumption.

The model of the Rule of Law underlying the writings of all the great names in the field, is based on the notion that reason, logic and rationality are the mechanics necessary to the emergence of the Rule of Law, and that these are the cause of the Rule of Law if you will. The set of measurable variables identified by this Rule of Law Standard are measures of or measures of the failure of reason, logic, and rationality necessary to the emergence of the rule of law.

Trying to identify the cause of something is like peeling an onion: There are many levels at which one can stop. The classic examples of this is the question, why did Johnny run out of petrol? Was it because he forget to get petrol? Had a fight with his friend and forgot? Was too drunk to remember?

There is no definitive answers as to what level of analysis the causal factors of the rule of law are best found.  Certainly, treating a correlation between indices of the rule of law as indicative of the rule of law or its failure is probably the least functional. Our approach has been to analyze what the great theorists in the field characterize as facilitating the rule of law and to tease out the assumptions behind what they are saying – that the rule of law rests upon logic, rationality and reason – and to use that as the basis of identifying Standards which those who would uphold the rule of law need to use as theri standard bearers.

In summary

Our Rule of Law Standard is designed to facilitate:

  • ongoing measurement of compliance with the Rule of Law
  • ongoing monitoring of compliance over time, and
  • ongoing corrective action immediately the Rule of Law is instant by instant eroded

In developing this Rule of Law Standard, our approach to the rule of law has had to be fundamentally different from the usual approach: Rather than focusing on putting the Rule of Law back together again – like Humpty Dumpty, after it has broken down – by instituting the consequence of its presence, or diminishing the consequences of its absence, our focus has been on preempting its breakdown and correcting its failures by facilitating the mechanics of the Rule of Law that are necessary for its presence in the first place, which – we discern from the great writers on the field – to be the mechanics of reason, logic and rationality

Contact us

Adoption of the Standard or any subcategory of the Standard is of course voluntary, and if you are interested in discovering how it may be utilized in your field of business or practice, you are welcome to contact us

LegalB: Mayo Road | Parkview | Johannesburg

Queries: 011 486 2978 | 071 068 7627

Email: rita@legalb.co.za

Leave a Reply