eROLProject-Volunteers-Programme-Topic02

eROL Volunteer Programme
Topics and exercises

TOPIC 2:
Basic Principles of the Rule of Law

1. OVERVIEW OF TOPIC 2

TOPIC 2 focuses on Principles of the Rule of Law and their historical development. It also identifes the logical fallacy behind treating them as causes of the Rule of Law, and suggest treating them rather as the effects of the Rule of Law, against which the making, implementation and application of legislation can be audit.

2. LINK BETWEEN TOPIC

Each TOPIC in the eROL Volunteer training programme provides a link between the previous and the next TOPICS.

TOPIC 1 was all about how to define the Rule of Law. Those who completed TOPIC 1 might have discovered, in general, the following:

That the "Rule of Law" is largely undefined, which makes it impossible to effect its causes.

That many regard the Rule of Law as an ideal with certain characteristics that are reflected in various Principles of the Rule of Law.

That there is a debate as to whether or not Principles of the Rule of Law should include Principles reflecting one or other ideal type political authority system, such as "democracy" and its characteristics of freedom, equality and so on

That those who think Principles of the Rule of Law should include ones that reflecting an ideal type political system, are referred to as holding to a "thick" substantive-focused definition of the Rule of Law.

Those who do not hold that the Principles of the Rule of Law should include ones that reflecting an ideal type political system, are referred to as holding to a "thin" or formalistic procedural-focusing definition of the Rule of Law.

This TOPIC 2 introduces Principles of the Rule of Law, and their lack of utility in treating them as causing the Rule of Law in the absence of a proper definition of the Rule of Law. It also introduces the utility of Principles as the yardstick for measuring performance under the Rule of Law by auditing the making, implementation and application of legislation as evidenced in Notices in the Gazettes.

TOPIC 3 focuses on formulating Rule of Law Standards derived from Principles of Rule of Law, against which the making, implementation and application of legislation can be measured to obtain an estimate of the incidence of the Rule of Law.

3. OUTCOME OBJECTIVES OF ROL TOPIC 2

eROL Volunteers should be able to do the following once they have completed TOPIC 2;

Identify and discuss basic commonly-accepted Rule of Law Principles (para7)

Display insight into the historical development of the concept of the Rule of Law and its Principles, as we know them today (para8)

Understand the argument that Principles of the Rule of Law describe the effects of the the Rule of Law, rather than its causes (para9)

Understand the logical fallacy of thinking that compliance with the Principles of the Rule of Law will cause the Rule of Law

Understand the value of auditing the making, implementation and application of legislation against Principles of the Rule of Law as a measure of the degree of support for and practice of the Rule of Law

Auditing the degree of support for the Rule of Law using the Gazette Notices as the window into the making, implementing and application of legislation

4. SUGGESTED METHOD FOR COMPLETING THIS TASK

TOPIC 2 "Principles of the Rule of Law" is an introductory topic despite that it covers quite a range of very complicated matters, and we don't expect anyone to do much other than to just read, and read and read again, and make notes as you go along, in order to absorb the gist of its subject matter, and to start thinking along the lines of how to utilize Principles of the Rule of Law as a practitioner.

As with other TOPICS, where you come across something interesting or confusing, make a note of your interest or confusion and do some free-ranging searches on that. Or contact us or other Volunteers in this eROL Group via the WhatsApp eROL Project Group, or via the eROL Project Facebook page, or on one of the Zoom discussions on this TOPIC 2.

5. REQUEST ASSISTANCE OR DISCUSSION ON THIS TASK WHENEVER NEEDED

If you have any difficulties relating to this TOPIC 2 and its task:

Please contact us directly by emailing rita@legalb.co.za or calling 071 068 7627.

We suggest that you join the “eROL Project” WhatsApp group (071 068 7627) where Volunteers can introduce themselves, and communicate and assist each other on this TOPIC and task.

We also suggest you join the eROL Project Facebook page and communicate about this TOPIC or anything else Rule of Law related

6. YOUR BASELINE KNOWLEDGE OF THE PRINCIPLES OF THE RULE OF LAW

Before starting this practical exercise, please answer the following questions, in your own words and without first researching the answer, in order to establish your baseline knowledge of the subject-matter:

QUESTION:

What are some Principles of the Rule of Law that reflect a "thick" or a "thin" definition of the Rule of Law

ANSWER:

7. OVERVIEW OF TOPIC 2: PRINCIPLES OF THE RULE OF LAW

7.1 Introduction

Various Principles of the Rule of Law have been proposed as key indicators of the Rule of Law itself, and in general compliance with the Principles is seen as the way to achieving the Rule of Law.

7.2 Sources

The following are introductory sources on Principles of the Rule of Law:

The Rule of Law by Tom Bingham - Video

Stanford Encyclopedia of Philosophy HERE

Google search "principles of the rule of law"

7.3 Self-assessment

QUESTION:

Identify Tom Bingham's 6th Principle of the Rule of Law, and discuss whether falls within a "thin" or "thick" perspective of the Rule of Law (see TOPIC 1)

ANSWER:

7.4 Discussion

The jigsaw puzzle

As you explore Principles of the Rule of Law, you'll find there are a bewildering array of Principles which, like pieces of a jigsaw puzzle for which you have no picture, just do not seem to fit together to make a whole picture.

Usual explanation

The main explanation for this state of affairs is that authors and commentators hold different views of what the Principles of the Rule of Law are because their concepts of the Rule of Law differ according to whether they hold to a "thin" perspective or "thick" perspective on the concept Rule of Law which the Principles describe, as we discussed in TOPIC 1..

However, confusion surrounding the Principles of the Rule of Law pre-existed the development of notions of "thin" and "thick" definitions of the Rule of Law, and therefore that argument should perhaps be discounted in favour of a rather more obvious reason, which is as follows.

Obvious explanation

The more obvious reason for this confusion of Principles is that there is no adequate and accepted definition of the Rule of Law, which of course means we have no basis upon which to identify causes of the Rule of Law. We can only describe its effect - which is exactly what the plethora of Principles of the Rule of Law are - a set of higeldy pigeldy descriptions of the effects of the Rule of Law that are not brought together under a cohesive theory of how to define the Rule of Law and what brings it into being, and what maintains it.

7.4 Summary

There is no closed list of Principles of the Rule of Law. Various authors and commentators list sets of anything between 3 and 8 or more Principles of the Rule of Law. These difference are often explained as arising from differences in the presumptions and assumptions that are made about the Rule of Law and which are broadly referred to as holding to a "thin" or "thick" perspective on what the concept encompasses. However, it is much more likely that these differences arise rather from the lack of a proper definition of the Rule of Law, because unless we have that, no-one knows what they are talking about.

8. HISTORICAL PERSPECTIVE ON THE CONCEPT OF THE RULE OF LAW AND ITS PRINCIPLES

8.1 Introduction

The concept of the Rule of Law has a tremendously long historical development that goes back at least to antiquity, and exploring that history it is really interesting for anyone who would like to understand how the concept of the Rule of Law has emerged from from that past, as a first step in defining the concept, which is so sorely lacking.

8.2 Sources

The following list of author surnames are seminal to any discussion of the history of the development of the concept of the "Rule of Law" and its Principles. Please Google these names +"rule of law" and read to get on top of the subject from a historical perspective:

Aristotle, Boonzaier, Brickhill, Dicey, Dyzenhaus, Fioramonti, Fuller, Govdel, Hasnas, Hayek, Hoexter, Hobbes, Hofstadler, Keynes, Kotze, Kohn, Kruger, Moseneke, Montesquieu, Ngcukaitobi, Plato Popper, Posner, Price, Schmidt, Tabak, Verkuil, Weber...

8.3 Self-assessment

QUESTION:

Do the Principles of the Rule of Law describe the Rule of Law?

ANSWER:

8.4. Discussion

Many of what we now regard as Principles of the Rule of Law are reflected in one or other form, in historical texts that have to do with governance and political control under a system of laws, which go back to antiquity.

A study of those Principles from an historical perspective is well worth it for anyone who would like a career as a practitioner concerned with Rule of Law, that is based on a sound understanding of those Principles.

I think it is important to realise that the term "Rule of Law" only emerged in 16C Britain, and only become popularized in the 19th C by Albert Dicey.

8.4 Exercise

QUESTION:

Make a comparison of the Principles of the Rule of Law as reflected by the ancient Greek Solonian Constitution Twelve Tables (450BC), by King John of England's Magna Carta HERE (6th C BC), by the Decemvirate of Rome's (1215 AD), and by our current day SA Constitution

ANSWER:

8.4 Summary

Many of the today's Principles of the Rule of Law are reflected in one or other form in historical texts on governance and political control that go back to antiquity. These Principles have survived scrutiny for centuries and still have substance today and a study of them is well worth it for anyone who would like a career as a practitioner concerned with Rule of Law that is based on a sound understanding of the concept.

9. USING RULE OF LAW PRINCIPLES TO DESCRIBE THE EFFECTS OF THE RULE OF LAW

9.1 Introduction

TOPIC 1 introduced you to a source of great confusion about the Rule of Law, which is that there is no generally agreed upon definition of the Rule of Law.

TOPIC 2 introduces you to a further source of considerable confusion about the Rule of Law and Principles of the Rule of Law, which is caused by a failure of logic that allows the effects of the Rule of Law to be treated as causes of the Rule of Law.

9.2 Sources

The following resources focus on defining and listing various common logical fallacies, one of which is the fallacy dealt with in this TOPIC, of treating cause as effect and effect as cause::

Wikipedia List of fallacies HERE

Logical and legal reasoning: A Guide for Law Students HERE

Informal Fallacies in Legal Argumentation HERE

Valid Arguments and Logical Fallacies HERE

Logical fallacies have no place in legal argument HERE

Please Google "cause and effect" and "logical fallacies" to further your understanding

9.3 Self- assessment

Before continuing, please answer the following question, in your own words and without first researching the answer, in order to establish your baseline knowledge of the subject-matter:

QUESTION:

If there is a 100% perfect correlation between things (ie they occur together each and every time), then does that mean the one thing causes the other?

ANSWER:

9.4 Discussion

The absence of a proper definition of the Rule of Law as to its cause and effects, has resulted in the following thinking:

that the effects of the Rule of Law are described by Principles of the Rule of Law;

that the extent to which those Principles are realised is a measure of the extent to which the Rule of Law has been achieved; and

that if we create the effects of the Rule of Law, ie its Principles, then we will have the Rule of Law.

Basically, the thinking here is that if we create the effects of the Rule of Law, as described by its Principles, then we'll have the Rule of Law.

The cardinal error in this thinking is that it treats the "effects" of the Rule of Law (as described by its Principles) as "causes" of the Rule of Law, and then tries to create those effects to create the Rule of Law.

Let's look at an example of this fallacious thinking: Imagine a car that stops because it has run out of petrol because the carburetter pipe has fallen off: One valid explanation is that the car stopped because it had no petrol. Another valid explanation is that the car stopped because it had no petrol because the carburetter pipe came off. Both of these arguments are true, but the first explanation will never result in a solution to fix the problem, because it confuses effect (no petrol) as cause (car stops), and doesn't allow for the possibility that that effect may well itself have an a priori cause (carburetter pipe falling off).

In relation to the Rule of Law, the logical fallacy is in thinking that there is a causal relationship between the Rule of Law and Principles of the Rule of Law whereas in fact the only relationship between the two is a descriptive one, because the Rule of Law is not defined by Principles of the Rule of law, but is merely described by those Principles.

Which means, if there is something called the Rule of Law, then that which describes it (the Principles of the Rule of Law) will always be present because a thing and that which describes it are, by definition, always in 100% perfect correlation.

An understanding of logical fallacies is of crucial importance in understanding the relationship between the Rule of Law and Principles of the Rule of Law. In fact, an understanding of logical fallacies is of crucial importance in everything from studying, undertaking research, writing reports, and having an effective career.

In the absence of an adequate definition of the Rule of Law, however, it is perhaps inevitable that the common fallacy of treating cause as effect, and vica versa, has emerged.

A major initiative of the eROL Project, which is well under way, has always been to develop a definition of the Rule of Law which defines the Rule of Law in terms of measurable variables, and which also identifies a priori causes of the Rule of Law that can be made subject to measurement so that their validity as "cause" can be established. This initiative is not covered for purposes of the eROL Volunteers programme, but you are interested in this aspect of the eROL Project,please contact us.

9.4 Exercise

QUESTION:

Explain the logical fallacy of treating the effect of something as its cause, in relation to the Rule of Law and its Principles

ANSWER:

9.4 Summary

If the Principles of the Rule of Law describe the effects of the Rule of Law, then we cannot assume the reverse - that the Principles cause the Rule of Law - even although there is 100% correlation between the occurrence of the two.

10. AUDITING COMPLIANCE WITH PRINCIPLES OF THE RULE OF LAW

10.1 Introduction

If the Principles of the Rule of Law describe circumstances where the Rule of Law holds sway, then we should be able to audit the making, implementation and application of legislation against those Principles of the Rule of Law, as one measure of the degree of support there is for the Rule of Law within a state.

The Gazettes of a State is a great data set on making, implementing and applying legislation, against which activities of the State can be objectively assessed and measured for compliance with the Rule of Law.

10.2 Sources

SA Gazettes HERE

LegalB Index of National Gazettes for 2021/02 HERE

LegalB Subordinate Document Lists for

10.3 Self- assessment

QUESTION

A Gazette notice entitled "By-laws of Cape Town Municipality" is published in the Gazettes with the watermark "DRAFT" on each page, and then implemented. What basic Principle of the Rule of Law is offended by this Notice?

ANSWER:

10.4 Discussion

The first requirement of auditing the making, implementation and application of law against Principles of the Rule of Law is the existence of a data set containing information on these.

In this day and age, that data set is found in the Gazettes of a State, whose various laws require that information on the making, implementation and application of legislation be published in its Gazettes. Two examples of legislation in South Africa requiring publication of this information are the SA Constitution 108 of 1996, and the Interpretation Act 33 of 1957, but there are many other pieces of legislation - national, provincial and municipal - that also provide for the publication of legislation and what is being done in relation to that legislation, as it affects the public. In addition in SA are also various other pieces of legislation and indeed common law rulings that provide for the publication of judgements of the Judiciary that affect the implementation and application of legislation, and for precedent over other prior judgements of the Judiciary.

The Gazettes of a State are therefore an ideal source of information on the making, implementation and application of laws which we can use to audit performance of the State against various Principles of the Rule of Law, as a measure of the degree of support there is for the Rule of Law within a State.

Each Principle of the Rule of Law has practical implications for its fulfillment. For example, the requirement that law be made known would be made ineffective it the law was commenced prior to its publication. And the amendment of a law in its wrong version would also make this Principle ineffective. As would the publication of legislation in a Gazette that that not made available. Or the publication of a notice informing the public about where to find subordinate legislation at an online that did not contain that document, or where that document was not kept at the web page for posterity.

The Principles of the Rule of Law reach way beyond the mere publication of legislation however. They also prescribe that the authority of the author be made explicit, that the legislation they act in terms of as creatures of statute be made clear, that the date of commencement, amendment or repeal of legislation be made absolutely clear, and so on to innumerable requirements as to what is published, and what opportunity the public has to respond.

10.4 Exercise

QUESTION

Please open LegalB's Index of National Gazettes for February 2021 HERE, open Notice 78 of Gazette 44138 dated 2021/02/10 issued by the President Ramaphosa in terms of an unnamed section of the Constitution of the Republic of South Africa Act 108 of 1996. Identify some concerns you may have about Notice 78's compliance with some basic Principles of the Rule of Law, and enumerate them below.

ANSWER

10.4 Summary

Although there is no adequate definition of the Rule of Law, and research and commentary on the Rule of Law is bedeviled by a logical fallacy that tries to institute the Rule of Law by contriving its effects, it is still possible to compare the making, implementation and application of legislation against the requirements of Principles of the Rule of Law, as an objective estimate of compliance of Parliament and various administrations and their functionaries against requirements of the Rule of Law.

11. TOPIC 2 QUESTION

QUESTION

What methodology and data is available to evaluate performance of a State against basic Principles of the Rule of Law?

ANSWER

Once you have answered the question, please copy and paste it to us by way of email.

12. FEEDBACK

After each TOPIC we will provide feedback to each individual Volunteer on their answer to the TOPIC question by way of email.

Because Volunteers will be going at their own pace through the eROL TOPICS we will also provide ongoing feedback on each TOPIC on the eROL Project FaceBook page

13. VOLUNTEER DISCUSSION ON THIS TOPIC

Volunteers can initiate or join ongoing discussion of this TOPIC in the eROL Project WhatsApp group, or on the eROL Project Facebook page. In addition, we will also from time to time provide Volunteers with the opportunity to register for and discuss eROL TOPICS on Zoom seminars we will be holding,

14. OPPORTUNITY TO PUBLISH SHORT ARTICLES ON THE eROL PROJECT BLOG

If you would like to gain experience in putting together a short article on the subject matter of this TOPIC, you will be able to publish it on the eROL Project Blog HERE, where it would be available for comment by the public and other Volunteers.

Let us know whether you would be interested in doing this :)

15. EVALUATION OF THE TOPIC

Please evaluate and comment on whether this TOPIC and its task has been effective in increasing your understanding of this TOPIC

ANSWER

16. SELF-EVALUATION

Do you think you have achieved the objective of this TOPIC (see under Section 2 above)? Please indicate whether you feel you have managed to complete this TOPIC and benefited from it:

ANSWER

17. REQUEST FURTHER RESOURCES IF YOU WANT TO UNDERTAKE FURTHER RESEARCH ON THIS TOPIC

Please let us know via rita@legalb.co.za what you would like to explore further about this TOPIC so we can assist you with further resources

Provide feedback to the Volunteer group on this TOPIC

You can use the WhatsApp eROL Project or the eROL Project Facebook page to provide your feedback

We will provide an overview of this TOPIC by way of email before we go on to the next TOPIC

18. PREVIEW OF THE NEXT eROL TOPIC

TOPIC 2 presented a way to assess performance of the State and its functionaries against basic Principles of the Rule of Law, despite the lack of a definition of the Rule of Law, by auditing Gazettes of the State against performance requirements of those basic Principles.

TOPIC 3 discusses the development of Rule of Law Standards that reflect specific performance requirements of Principles of the Rule of Law, as they relate to the operationalization of those Principles in the making, implementation and application of legislation.

17. MOVING TO THE NEXT TOPIC

When you have completed this eROL TOPIC 2, please request the next TOPIC 3.