It should go without saying that unless the Rule of Law is defined as a cause, rather than a complex set of correlative outcomes from which we can only infer its existence, we will forever be trapped into trying to steer the rule of law into existence from behind as it were, like a boat, by manipulating its correlative variable outcomes, as if those effects were “cause”.
Yet, such causality-based definitions of the rule of law are sorely lacking. There seems to be no acknowledgement correlations a necessary, but insufficient condition for causation:
Scratch any definition of the rule of law and you will find inevitably that it is defined as the cause of its own outcomes. You be having democracy? Then you must be having the rule of law. Increasing deaths in detention? Abuse of state power? Burgeoning corruption? Then the rule of law is in trouble. And, to escape the cognitive dissonance of how to mentally bridge the gap between cause and effect, definitions proliferate that are watered down by statements like, “the Rule of Law takes on several meanings”, or “we define the rule of law as …” or, “the Rule of Law has 5/4/8/… principles”, or “We use a thick/thin definition”, and so on.
It struck me some time ago, after a decade of struggling with this conundrum, that a proper causality-based definition of the rule of law may in fact be hiding in plain sight behind the skirts of, as it were, the few basic and fundamental principles accepted by virtually all as fundamental requirements of rule of law, principles such as: The law must be made know. It must be well defined. All are equally accountable before the law. Law prescribes the limits of power. And the exercise of power. Power cannot be arbitrarily exercised. No-one is above the law. And so on.
And, after considering this, I realized suddenly that it was my embarrassing neglect to indulge this shallow-level analysis of what the basic well accepted principles of rule of law have in common, which had obscured what seemed a self-evident conclusion about how best to conceive of the rule of law as cause:
That self-evident conclusion was the extended realization that all generally accepted basic principles of the rule of law appear to emerge from the a priori application of reason, rationality and logic to understanding systemic mechanisms necessary to maintenance of equilibrium in any governance system.
Which led me to conclude that what is hidden in plain sight about the nature and definition of the rule of law, is the existence of a fundamental right – perhaps the most primary right of : The right to live in a world governed by reason, rationality and logic.
In such a world, measures of compliance with the rule of law in any particular instance of governance, suggest themselves and emerge as those very same basic fundamental principles of the rule of law I referred to above, upon which almost all of agree.
Governance that satisfies the rule of law, if so defined and measured, cannot be achieved in a a world where legislation is pushed in the bottom draw of someone’s desk instead of being published, where the public are told to not worry about what the law is, just fill in this or that Form; where actions are taken in terms of Bill; where Acts are not commenced or commenced in duplicate on different days, or commenced retrospectively or in such a way and in so piecemeal fashion that the Act becomes a creature that the Legislature never intended; where prescribed nomination processes for committees and boards are not followed, or where the exercise of power by members runs over their term of office; where amended legislation is commenced instead of the amending legislation, where amending legislation amends the wrong version of an Act, and so on in a myriad of ways. It cannot be achieved because it does not make reasonable, rational or logical sense, and thus fail the rule of law and infringes on the right to being governed by reason, rationality and logic.
In such a world, where the fundamental right is to reason, rationality and logic, the test of whether something complies with the rule of law is, simply, whether one or other act of governance is reasonable, rational and, or, logical? And the arbiter of that is not the legislature, executive or judiciary. It is the governed. The public.
The determination of causality is always incredibly complicated and requires a tremendous amount of rigorous experimentation. The development of Rule of law Standards based on reason, logic and rationality is the on basis upon which such experimentation can be undertaken.