By Dr. Ernesto Briseno, MCIArb
Introduction
The rule of law stands as a fundamental pillar of civil society, encapsulating the principles of fairness, justice, and equality before the law. It is the cornerstone of democratic governance, ensuring that all members—from individuals and civil or corporate entities to government entities—adhere to legal norms that are clearly defined, publicized, and impartially enforced. This framework not only underpins the protection of human rights but also bolsters societal stability and economic development, fostering environments where justice prevails and tyranny is curtailed. Provides a necessary balance between rights and authorities.
Historically, the rule of law reflects humanity’s enduring quest for fairness and justice, with roots in Roman jurisprudence, Greek philosophy, and Enlightenment thought. Despite its foundational character, law has also been manipulated to justify grave injustices—such as slavery and witch hunts—revealing its dual potential for justice and oppression. While it doesn’t always provide justice in its purest form, if it’s followed and respected provides certainty, mostly for good but also sometimes for bad.
This article explores the historical evolution, jurisdictional interpretations, modern mechanisms, and ongoing challenges surrounding the rule of law. It argues that the rule of law is not static but a dynamic, continually evolving process requiring vigilance, reform, and enforcement mechanisms responsive to current global realities. But very importantly it deserves respect, since the role it plays in society is fundamental.
Definition and Scope of the Rule of Law
The rule of law can be defined as the principle that all individuals, institutions, and entities, public and private, are accountable to laws that are: publicly promulgated, equally enforced, and independently adjudicated. This concept emphasizes legal certainty, transparency, and the impartial administration of justice. It encompasses without a doubt, mechanisms that guarantee its enforcement, which must be independent and serve as a scale that balances rights with public power.
As articulated by Fuller, just laws must be general, public, prospective, clear, consistent, and stable. These requirements ensure that laws can guide behavior and constrain arbitrary governance. In contrast, when laws are vague, hidden, or retroactive, the rule of law is undermined. This serves a logic that makes each of those requirements necessary:
1. Generality.- They must applied broadly, meaning they can’t target specific individuals or groups, otherwise they would be automatically discriminatory. This guarantees that every citizen has the same rights (and obligations) in accordance to the Law. Individual resolutions are usually confused since they are individual by nature, but they derive from a procedure regulated by law (e. g. a tax verification with a fine) which also not always need to be public. This resolutions are part of the Rule of Law but not by themselves but because they derive from a procedure contemplated in the Law.
2. Publicity.- Everyone must be able to verify the existence and the terms of the law through a specific vehicle, usually the government’s official gazette. This is not only part of the legislative process, it’s a very important guarantee that avoids “made up” laws or unilateral criteria. It must be kept in mind that the legal frame has always at the constitutional level the publication of the norms that will affect.
3. Prospectivity.- Refers to the time in which they are applicable, they can’t regulate anything that happened before their existence. The principle of non-retroactivity of the law is reflected here. Also, the rights granted may not extinguish with a new law, however, the obligations will be extinguished with a new law that does not foresee them.
4. Clarity.- It must be understandable unambiguously what a precise law requires, grants or forbids. Ambiguity would allow the law to be interpreted different by authorities who might abuse it undermining its spirit. A law that presents ambiguity will most likely be unconstitutional.
5. Consistency.- Coherency between one law and the others in a legal system is cornerstone for the Rule of Law. It’s important to keep in mind that the Law reflects the needs of society and aims towards order, but there are also periods in time in where those needs evolve and it’s somewhat common to find laws that contradict others, specially when they have been highly reformed rather than substituted with new ones. Certain principles such as lex specialis derogat legi generali apply when both laws are on the same hierarchical level (e. g. (hypothetically) a contradiction between a Civil Code and an Adoption Law).
6. Stability.- This is probably the characteristic that has more nuances, the law must be stable at all times in the sense that they allow people to plan in advance and know about her rights and obligations. This of course is superseded if the law must be corrected for a bad legislative technique for example. Another aspect of this characteristic is a tendency in similar legislations to have the same spirit in their laws, things such as due process, representation, filiation, criminal offenses, among others will be very similar across jurisdictions with minor nuances.
Comparative Perspectives Across Jurisdictions
In the United Kingdom, A.V. Dicey identified three central tenets of the rule of law that are: the absolute supremacy of regular law over arbitrary power, equality before the law, and the predominance of legal spirit through common law principles. The United States incorporates the rule of law in its Constitution, using a system of checks and balances and judicial review to preserve legal accountability.
Continental Europe provides varied but analogous frameworks: Germany’s Rechtsstaat, France’s État de droit, and Italy’s Stato di diritto all emphasize legal certainty, the protection of rights, and judicial independence.
Across Latin America, Mexico’s Estado de Derecho similarly enshrines the supremacy of constitutional order and the protection of fundamental rights. In Mexico since 1841 the Juicio de Amparo exist which is a direct vehicle for protection of the Rule of Law that can be directly triggered even by individual citizens immediately and directly after the violation.
Importance and Functions of the Rule of Law
In democratic societies, the rule of law provides safeguards against tyranny by ensuring that all public officials are held accountable and that laws are enacted and enforced transparently. Also, it prevents authority from acting ultra vires factually creating rights and obligations. This legal framework also empowers citizens to challenge injustice through independent courts. Different legal systems have different steps to get to this courts, some are direct after the violation and some have to go through administrative appeals which gives the violating authority another chance to rectify but usually ends up in making the process unnecessarily longer.
In contrast, in autocracies, laws often become tools for repression. Selective enforcement and a lack of judicial independence lead to arbitrary governance and erosion of public trust.
The difference between both is that in democratic societies the will is on the people and executed by their legitimate representatives who are usually elected. In an autocratic society the people are subjects more than constituents.
Economically, the rule of law promotes a stable investment environment, secures property rights, and lowers risks associated with corruption or expropriation. It is no coincidence that countries with strong legal institutions—such as Germany and Sweden—consistently rank higher in economic competitiveness indices.
Historical Evolution of the Rule of Law
The notion of rule by law has ancient roots. Aristotle asserted that it is better for law to govern than any one citizen, emphasizing the dangers of arbitrary power. Roman law expanded this idea by systematizing legal principles in the Twelve Tables and later the Corpus Juris Civilis, introducing ideas of justice and procedural fairness that influenced European legal traditions and are valid to this day.
The Magna Carta (1215) was a key turning point, compelling the English monarch to recognize legal limits on royal authority and establishing early notions of due process. Enlightenment thinkers like Montesquieu advanced the concept of separation of powers, laying the groundwork for modern constitutionalism. Later codifications in France, Germany, and Italy formalized these values into comprehensive systems grounded in legality, legal certainty, and fundamental rights.
Mechanisms Ensuring the Rule of Law
To function effectively, the rule of law requires institutions and practices that uphold accountability and prevent power consolidation. These include:
- Codified Law: Systems like the Corpus Juris Civilis in Rome and modern civil codes provide transparency and consistency.
- Constitutional Frameworks: Constitutions such as that of the United States define legal limits and rights.
- Judicial Independence: A non-partisan judiciary is essential to adjudicate disputes and check abuse.
- Judicial Review: Originating with Marbury v. Madison, judicial review allows courts to strike down unconstitutional actions.
- Separation of Powers: Montesquieu’s theory remains a cornerstone of democratic governance and is embedded in most constitutional democracies.
- Instruments like the Mexican Juicio de Amparo guarantee that any authority, regardless of the power it belongs, can be held accountable for its failures.
Historical Failures of the Rule of Law
Despite its ideals, the rule of law has historically been perverted to justify injustices.
- Slavery: Legal codes in the U.S. and European colonies entrenched slavery, reducing people to property under the law. The 1850 Fugitive Slave Act imposed severe penalties for aiding escaped slaves, deepening racial injustice.
- Witch Hunts: Between the 15th and 18th centuries, thousands were executed under legal frameworks that permitted torture and ignored due process.
In both cases, law served as a mechanism of oppression rather than justice, demonstrating the danger of morally deficient legal systems. Yet, as horrible as it may sound they were in line with the Rule of Law, so the problem doesn’t lay within the Rule of Law it relays on the Adequacy of Law.
Contemporary Breaches and Their Dangers
Failures to uphold the rule of law in modern contexts often result in democratic backsliding, corruption, and human rights abuses. For instance, Poland and Hungary have faced criticism for undermining judicial independence and media freedoms, triggering EU infringement proceedings, undermining gravely the European Rule of Law. Myanmar’s 2021 military coup abolished constitutional order overnight, highlighting how fragile legal protections can be under authoritarian threats. While Russia’s increasing use of law to criminalize dissent and centralize power has drawn concern from rule of law monitors and human rights bodies, it can be argued that the country’s legal framework provides a sense of stability in certain respects. By clearly delineating legal boundaries, individuals are informed about permissible actions, which reduces the uncertainty associated with arbitrary governance changes. This predictability, despite the contentious nature of some laws, offers a form of procedural assurance that can be absent in systems where legal promises are unpredictably revoked.
The consequences of such breaches include:
- Authoritarianism: When checks on power erode, states can slide into arbitrary governance.
- Corruption: Lack of accountability fosters misuse of power and public resources.
- Human Rights Violations: Legal protections become ineffective when courts lack independence or are politically manipulated.
Conclusion
The rule of law remains a foundational principle for democratic societies, economic prosperity, and human dignity. Its evolution from ancient philosophy to modern constitutionalism reflects humanity’s ongoing pursuit of just governance. While it has at times been co-opted to serve injustice, it also provides the tools for redress and reform.
Ensuring the integrity of the rule of law today requires robust institutions, vigilant civil society, and international cooperation. Legal systems must remain dynamic—capable of adapting to new challenges such as digital governance, global migration, and transnational crime. Above all, they must remain rooted in principles of fairness, equality, and transparency. Upholding the rule of law is not merely a legal obligation—it is the lifeblood of a just and peaceful global order.
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