The Rule of Law Standard

Overview

The Rule of Law Standard is based on first principles of the Rule of Law, which are those that relate to participation by the public in the development and application of law.

This Standard is a world first tool which uniquely subjects the Rule of Law to measurement not of its hypothetical effects, but through its probable causes. The import of adopting this approach to the Rule of Law is self-evident: It means that instances of default from the Rule of Law can be identified. measured and rectified before the Rule of Law breaks down. Not after it breaks down. And it is not only preventative, but corrective, in that it provides avenues to rectify the breakdown of the rule of law once it has already broken down.

The focus of the Rule of Law Standard is on whether or not State legislation, or indeed other-sourced rules and regulations, and its application complies with the basic first principles of the rule of law to which we mostly agree – such as, law must be made public – because to believe otherwise would be to assume the irrational, unreasonable and illogical would gain sway over the rational, reasonable and logical.

In sum, our Standard:

  • has been developed through an analysis of reasonable, rational and logical requirements of the rule of law from basic first principles with which we all mostly agree
  • identifies measurable variables relating to requirements of the rule of law which would indicate whether there has or has not been a failure of those requirements of the rule of law
  • allows for immediate and practical action to correct instances of the failure of the rule of law as soon as possible after they occur
  • provides a measure of and overviews of the extent to which the rule of law has broken down, and presicely how it is being broken down
  • provides opportunity to develop and apply cost-effective and efficient systemic corrections to rectify and prevent such breakdown of the rule of law in future, which focus on causal factors, rather than correlative factors

What the Standard is based upon?

Like all Standards, the Rule of Law Standard consists of set and subset categories of measurable variables, organized through superseding Levels of analysis, which reflect basic principles of the rule of law.

These measurable variables derive from analysis of commonly-accepted basic principles of the rule of law – such as, for example, that law must be made known – which have over time become accepted worldwide as indices of whether the rule of law has or has not been complied with. On analysis, what the various commonly held basic principles of the rule of law have in common is that they each seem to be grounded of reason, logic and rationality, and therefore it would make no sense to argue otherwise about the rule of law than from a point of view that encompasses those basic principles as given.

Obviously, further analysis on acceping commonly accepted basic principle of the rule of law – like, law must be published – raises a tremendous rabbithole of questions, answers to which put those basic assumptions to proof.  For example, the basic principle that law be published, raises the question of whether law that is not made public is, by definition, to be considered law at all? Further, what is law on other criteria must be considered as law regardless of whether or not it is published, is unpublished law legally enforceable? And if so, is the test of whether it is law or not, the measure of the failure of public participation in honouring it as law? Or, the refusal of that public participation if it is enforced? Or, the effectiveness of that failure/refusal of public participation in making it unenforceable?

However, on much analysis, it has become clear that ground zero in understanding the rule of law from a causal rather than effectual perspective, is that it is all about what is reasonable, logical and rationale, and the measurement of the rule of law is all about defining measurable relating to what is regarded as reasonable, rational and logical.

On the basis of this thinking about the rule of law, from its causative rather than corrolative perspective, we can IO feel, devleop an initial model of the rule of law by reference to those basic principles most would agree are intrinsice to the rule of law – which all have to do with what is reasonable, logical and rational. We can do this for now, without going further down the rabbithole about the rule of law. And, and added advantage of using thiis a the starting point for a causative approach to the rule of law is, that it is not inherently conflictual with other models of rule of law which also use those same basic principles of the rule of law as their ground zero.

The model that underpins the Rule of Law Standard presented here is a model of the Rule of Law as the most fundamental and basic of rights (human or otherwise) from which all other rights (human or otherwise) flow: Which is the right to live in a world characterised by reason, rationality and logic.

A Rule of Law Standard based on that model, that offers measures of, and deviations from elements of the Rule of Law (being reason, rationality and logic) as the measure of compliance with and failure of the Rule of Law would best facilitate avenues to pre-empt the breakdown of that most fundamental of all rights, the Rule of Law, and offers the best avenue to preempt and rectify failures in achieving that right.

About the Rule of Law Standard

The Rule of Law Standard, as developed thus far, has as its focus only formal primary and secondary legislation and other rules, as promulgated by those in power, and consists of a set of categories for which measurable variables which represent the content of the Rule of Law – as a basic right to live in a world of reason, rationality and logic – can be identified, and sub-categories within those categories derscribed.

Please note that these categories are not based on expected derivatives of that basic Right, such as that law be consistent, reasonably implemented, moral, unbaised, fair and so on. And definitely, these categories do not go to the imagined product of the Rule of Law loved by advocates of a “thick” definition of the rule of law (such as access to justice and judical review, legal certainty, proprionality, equality and non-discrimination and transparency). Nor do these categories assume that the envelope of discussion about the rule of law belongs only to a discussion relevant to humanity, nations, democracy or other things imagined to be the outcome of a separation of powers.

These categories, more simply, go to raw factors which would seem to directly indicate whether the objectives, promulgation, content, implementation, and outcome of a law are based in reason, logic and rationality.

Therefore, primary measurable variables of the Rule of Law Standard fall within primary categories to do with Objectives; Drafting;  Promulgation; Publication; Commencement; Appointments, delegations and assignment; Potential Transgressor Identification; and Potential Transgression identification and elements of transgressions; Applications; Mechanics of Obtaining Objectives; Enforcement and Consequences of non-compliance; Efficacy; and so on.

Each primary category of the Rule of Law Standard consists of a subset of further measurable variables relating to that category. For example, the category “Publication” includes measurable variables which go to whether the proper publisher of the law is defined and known; whether the legislation, regulation or rule was published by that publisher; whether the quality of publication is adequate; whether language used is adequate; whether the form of publication (electronic, paper or other) is appropriate; whether the publication was made available to the public; whether that was timeously so; whether the publication has ongoing availability; whether it is archived properly for purpose of future provenance; whether the author was empowered to author that material; and so on.

The Rule of Law Standard can incrementally be subscribed to and applied, Category by Category, allowing for prioritization of the specific concerns of those who would use it, and can be further adopt in other areas of interests, so that the application of the Standard can best inform the development of and application of policies and strategies geared to prevent and/or recover from a breakdown of the Rule of Law within areas of specific concern.

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, which is characterized by such things as widespread corruption, the exercise of arbitrary power by the state, nepotism and patronage relationships, or even wholesale State capture.

We also believe that a Rule of Law Standard is a necessary (though obviously not sufficient) precondition to resecuring 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, amending legislation and subordinate legislation, 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 the rules prescribed in legislation.

And of course we offer it to those monitoring State and other actors, and anyone interested in researching the arena.

Why now, a Rule of Law Standard?

The rule of law is a product of an absolutely fundamental but little recognized right – to live in a world that is reasonable, rational and logical – upon which all other rights derive.

The current state of play in the rule of law field is this: Millions and billions are spent on applications and measurement tools which purport to measure the “rule of law”. However, all do nothing other than measure the purported effects of – not the cause of – the rule of law. And scratching deeper into the current state of play, this is no wonder as most of those who comment on, measure and are active in supporting the rule of law do not actually define the rule of law itself, as anything other than a consequence of, something that they leave undefined. Which means, inevitably, that studies into the rule of law are basically and largely correlative. The result: Failures in the rule of law abound, noone seems to be  able to solve rule of law problems and the world is a worse place for it.

This iniquity is carried out with the best will in the world and results of the current state of the rule of law measured in correlative studies comparing reality vs the ideal represented by the rule of law abound and display the results of all the effort in magnificent tables and content, which do nothing more than rub our noses in the fact of the failure of the rule of law.

But know this when presented with such studies and comment: Measurement of the state of something is not a measure of anything other than a measure of the effect of something else, and if you cannot define what that something else is, you really can’t claim to be measuring the effects of what you claim to be measuring. At most you can claim to be measuring reality vs a hypothetical ideal consequence of that which you have not defined.

Many forget this in relation to the rule of law, by the confusing the world of cause and effect.

In the vacuum of an adequte definition of the rule of law that allows it to be subject to causal analysis and research into its effects, the common practice is – and let me say, the WJP is the classic example here – to create a rule of law index of characteristics of States or other entities that “have” the rule of law, and then to measure the correlation of specific State entities with those 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.

The pitfalls in this approach – of treating effect as cause – are numerous. Here’s one: The assumption is that if a change in a measurable index of the rule of law reflects an increase or decrease in the rule of law, then practical action to maintain and enhance 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 the levels of what are seen as the effect 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.

Nothing could be further from the truth. And that is why, a Rule of Law Standard, now.

Presumptions of our Rule of Law Standard

The Rule of Law Standard does not equate the effects of the rule of law with the cause of the rule of law. It does not assume that changing variables hypothecised to be effects of the rule of law – by example reducing deaths in detention and so on – will generate rule of law itself.

Instead, our starting point has been 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.

This analysis found that the presumptive thread running through all their thinking has been that the fundamental rule for making and applying Law and indeed its longevity and the longevity of those wielding its power,  is that it needs to be based on reason, logical and rational, and that to the extent this is the case, the fundamental rule of law can be regarded as being satisfied; and that to the extend this is not so, the fundamental rule of law can be considered to remain unsatisfied and the legal system prejudiced by resulting disequilibrium.

What makes Law reasonable, logical and rational?

As with most things, faculties of reason, logic and rationality lie within the vast majority of individuals. They will not find it reasonable for their feet to be held to the fire because they did not act in terms of a law they were not told about. And any legal principle applied needs be at one with that knowledge. For instance, if law is not made known, then the presumption that a potential transgressor knew the law must be treated as rebuttable and where it was proved the law was not made known, there must be recognition that the onus must then shifts to those who try to depend upon 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 therein lie the causes of the rule of law being satisfied.

The set of measurable variables identified by this Rule of Law Standard have been identified as measures of the application of or failure in the application of reason, logic, and rationality necessary to satisfy the rule of law, and which ipso facto, allow for 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 is the question of why Johnny run out of petrol? Was it because he forget to get petrol? Had a fight with his friend and thus forgot? Was too drunk to remember and instead he fought his friend?

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 instructive way to peel the onion.

Our approach has been to analyze what the great theorists in the field characterize as facilitating the emergence of the rule of law; to tease out the assumptions behind what they are saying – that the rule of law rests upon logic, rationality and reason; to use that as the basis upon which to identify measurable variables relating to logic, ratoinality and reason; and to uses those to develop a Rule of Law Standard which those who would institute, secure and uphold the rule of law can use as standard bearers in their activities.

In summary

Our Rule of Law Standard is designed to facilitate:

  • measurement of compliance with the Rule of Law
  • monitoring of compliance over time, and
  • 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. Our focus has not been 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 by diminishing the consequences of its absence. Our focus has been on preempting its breakdown and correcting its failures by measuring the mechanics of making and applying law against principles 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