It would seem that there have been no attempts to develop a set of Rule of Law Standards other than the current attempt here. All advice has been that it would not be possible to develop such a Standard. But, we’ve given it a go.
The Humpty-Dumpty approach
The brand of thinking behind the advice that standards cannot be developed in relation to the rule of law seems to be a by-product of what, to be honest, can only be called a failure to properly define the rule of law itself, in terms of cause, of its effects, and then, on top of that, to treat the solution to rule of law problems as the correction of what are presupposed to be its effects. This is like putting Humpty-Dumpty together again, and this approach has been singularly unsuccessful.
Take any one of the numerous generic definitions of the rule of law floating around and dig around in the definition, and you will find that the definition amounts to little other than a character sketch of the set of effects thought to emerge from the rule of law, and this is topped off with support for a methodology that involves identifying those variable effects of the rule of law, which when identified and measured are taken as proof of the presence or absence of the rule of law. This is of course followed by practical efforts to establish, maintain or restore the rule of law by reducing the negative effects of the absence of the rule of law, and increasing the positive effects of the rule of law.
It probably goes without saying that if one defines the rule of law as a set of effects, rather than a set of antecedents, then the search for antecedents would of course become irrelevant, and solutions to establishing, maintaining and restoring the rule of law would of course take the form of ameliorating what are thought to be the effects of its absence and supporting what are thought to be the effects of its presence.
That the above is the case is borne out by the fact that, in reality, most efforts to enhance the rule of law do indeed follow the path of measuring what are thought to be the effects of the rule of law or their absence, followed predictably by efforts to decrease or increase variables measured to, as the case may be, institute, maintain or restore the rule of law.
This Humpty-Dumpty approach to the rule of law been singularly unsuccessful and it is fairly universally acknowledged that the whole concept of the rule of law is in need of a desperate makeover.
It would seem that the best avenue to redefining the rule of law may be to move away from the circuitous correlative one that currently defines the rule of law in terms of its effects and that then tries to manipulate those effects to resolve rule of law problems, and to rather towards towards a definition that emerges from a cause and effect model of the rule of law and methodology to match.
Looking at the Rule of Law from another perspective
Basic presumptions about the nature and character of the rule of law (as opposed to its effects) as a guide to the exercise of power and mechanisms of governance – such as those proposed by the likes of Dicey, Bingham, Raz, and the Magna Carta, and even beyond that back to Aritstotle – all point to the idea that the exercise of that power and mechanisms of that governance must, if based on the rule of law, be driven by standards offered by reason, rationality and logic; and that in Turing complete fashion, the institution and maintenance of those standards is best achieved through a separation of powers between those who make the law, those who apply it and those who adjudicate it.
If one does not want to throw this baby out with the bathwater, and ruffle too many feathers in doing so, it is probably best to incorporate these components of the rule of law into whatever re-definition is made of the rule.
The best way we have seen to achieving this, which we have developed in tandem with concept and application of a Rule of Law Standard, would be to posit the existence of an priori right – to live in a world that is rational, reasonable and logical – and to define the rule of law as the expression of that right in relation to the exercise of power and governance which ensures that right is least likely to be infringed.
The Rule of Law Standard
A primary presumption upon which the Rule of Law Standard rests, therefore, is that the rule of law is an expression of a fundamental and universal right to live in a world that is reasonable, logical and rational, and that all the basic commonly-accepted principles of the rule of law reflect requirements of that fundamental right. So, for example, that fundamental right, in relation to governance and power, expects and demands that the law be made by those with the power to do so, that it be made known, that it be applied, equally, justly and fairly precisely because it is reasonable, logical and rational to do so.
A second presumption is, that the most efficient way to establish acceptance of and maintenance of the rule of law, is to identify and facilitate that which causes it, rather than to identify and facilitate or ameliorate as the case may be, effects which flows from it.
Using this causally-based definition and operational model of the rule of law has facilitated the identification of a number of Rule of Law Standards in relation to legislation and actions in terms of legislation, which are demanded by reason, logic and rationality, and these Standards have been applied to the data-set of South African legislation and actors in terms of that legislation, and appear to have heuristic value not only in determining where and how the rule of law is being undermined, but also in pointing to avenues to correct rule of law failures that don’t depend on corrects the effect of the failure of the relevant Rule of Law Standard.