The impetus towards developing and applying of a Rule of Law Standard was a direct result of the realisation soon after the developer of the Standard, Rita Felgate, entered practice as an Advocate in 2002 that there was a clear and increasing legal quagmire in South Africa, arising from an inability to obtain original copy of Acts, or ascertain the texts of amended versions, confusion over whether they were live or not, or had been amended, and chaotic information about subordinate texts made in terms of primary Acts, their operative dates, and actions in terms of these.
It was clear from the breakdown and resulting quagmire that adhering to principles of the Rule of Law was challenging, but the discussion around these difficulties was not couched as rule of law matters, but matters to be dealt with from within a compliance/transgression model.
However it became very clear, sooner than later, that specific problems from which the above legal quagmire seemed to emerge – like, the failure of a Department to provide the public with forms necessary to applying to licenses, the publication of press copies of Acts by commercial publishers that differed from the Gazetted versions, the implementation of Acts that had yet to be commenced, the implementation of by-laws which had need headed “draft”, or “specimen”, and so on – were not really approachable from a compliance/transgression perspective, and that the true home of the whole set of problems being encountered was from within the framework of the rule of law.
It quickly became apparent, however, that attempts to find and utilise a rule of law model as the tool to deal with the legal quagmire, as it emerged case by case during practice as an Advocate, had its own stumbling blocks: There was no body of cases relating to that approach. Cases where the rule of law was mentioned did so in the vaguest of terms. Attorneys were not keen on going that direction. There was a failure to define the rule of law other than in terms of its supposed effects. Research into the rule of law also focused on its supposed effects. In fact, measures of the effects of the rule of law are taken as an indication of whether or not and to what extent the rule of law exists, and
The first was there appeared to be current application of a rule of law model no studies of how the rule of law broke down under pressure from the kind of factors that were producing the legal quagmire in South African law. The second was that, what studies there were, were correlative studies based on surveys of variables posited to emerge as the effects of the rule of law, not the causes of the rule of law. For instance
The biggest stumbling block of all was the failure to define what was meant by the rule of law from within a cause and effect model. This meant, practically, that there was nono indices of the rule of law’s presence or absence had been defined
as a result became increasingly disillusioned with the current approach to the Rule of Law which consists of defining it by the consequences of its absence, measuring it by measuring symptoms of its failure, and trying to put it back together by pouring money into removing the consequences of its failure, rather than the mechanics of establishing it.
This has lead to a Humpty Dumpty approach to the Rule of Law, an approach that tries to fix the effects of the rule of law, rather identifying the causes of the rule of law and its failure to properly focus on causal factors or to recognise that endemic systemic dysfunctions riding on the back of that failure were not a failure of the Rule of Law but the symptoms of that failure, irrational and illogical.
Her unique approach to the Rule of Law has been to identify common and accepted fundamental principles of the Rule of Law, to explore primal reasons that these principles need theoretically to be adhered to, and to understand the mechanics of applying those very principles in the coalface of the real world, to measure the extent of that application, to confirm the correlation between the extent of application of those principles with the presence of symptoms of the breakdown of the Rule of Law and finally, to develop a Rule of Law Standard
The Rule of Law Standard she has developed identifies principles of the Rule of Law to be ascribed to, the identification of their application within particular contexts, baseline measurement tools to identify and monitor the level of compliance and non-compliance with those principles, and avenues to rectify a breakdown in the application of those principles and achieve compliance with them.