Government: government according to law - The modern significance of the Rule of Law.
The rule of law was first discussed by A.V. Dicey in his Introduction to the Study of the Law of the Constitution (1885). In his view (which formed the basis of the modern doctrine of the rule of law), the rule of law means that:
"No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land."
"It means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even a wide discretionary authority on the part of the government"
"Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals."
"Our constitution, in short, is a judge-made constitution."
"Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge" "The essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible.... While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used to deliberately to frustrate his efforts."
"The difference between the two kinds of rules [the specific and the non-specific] is the same as that between laying down a ... Highway Code, and ordering people where to go; the formal rules tell people in advance what action the state will take in certain types of situations, defined in general terms, without reference to time and place or particular people. They refer to typical situations into which anyone may get and in which the existence of such rules will be useful for a great variety of individual purposes. The knowledge that in such situations the state will act in a definite way, or require people to behave in a certain manner, is provided as a means for people to use in making their own plans."
"It may appear paradoxical to claim as a virtue that under one system we shall know less about the particular effect of the measures the state takes than would be true under most other systems and that a method of social control should be deemed superior because of our ignorance of its precise results. Yet this consideration is the rationale of the great liberal principle of the Rule of Law."
"The Rule of Law implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law, and excludes legislation either directly aimed at particular people"- H. A. Hayek - The Road to Serfdom.
A legal system exists if there is the effective enforcement of rules - thus the Nazi system had law and legality. What is, is different from what ought to be.
By this definition the arbitrary actions of Nazi and Communist governments are a breach of the rule of law.
The rule of law requires an entrenched constitution - freedoms are assumed to exist but they may not, in reality, exist absolutely.
The rule of law means that no-one is above the law and all are equal under it.
The rule of law must, to be effective, require equality of punishment - one person could get life and another could be released after one day in prison, for the same offence.
The rule of law is aided by the actions of the judiciary in judicial review of the Executive.
The rule of law requires an independent judiciary - are right wing, middle class, middle aged male judges always impartial; e.g., in trade union and discrimination cases.
The rule of law implies the rule of laws rather than people.
The rule of law sometimes must be suspended - the Nuremberg trials were contrary to the rule of law, but most people agree that they were necessary (the acts with which they were charged were legal when committed, through Nazi Acts, (the trials were mere show trials with the aim of the elimination of enemies - there was no pre-existing rules of international trials) yet they were still charged with breach of them.
Some people have argued that the Nazi laws under which these people committed their acts were of themselves illegal through breach of the higher Natural Law, and as such the trials were not illegal; this argument requires belief in a 'Natural Law' which in itself requires belief in a God, so Natural Law is inconsistent with atheism. Furthermore it does not necessarily follow logically even if one is not an atheist, since the determining of what is higher law is (usually) done by man and as such is subjective and manmade so therefore is not higher law but merely human moralising (note that a source of natural law is religious texts, and these can be used to annul inconsistent laws; this would not be applicable to an international multi-faith court)
Although the rule of law is often mentioned as an unbreakable and utterly desirable ideal, to be defended at all costs (often by people who do not understand what it is, but who think that the concept sounds quite good), its breach is defensible.
For example, although I do not intend to comment on the turpitude (or otherwise) of our Prevention of Terrorism law, the breach of the rule of law in this respect can be justified (but is not necessarily justifiable) on the grounds that it is for the protection of the greater number - in this sense the breach of the rule of law can be justified on utilitarian grounds - the greatest good of the greater number.
The question of whether we would prefer a crime-ridden, but free society arises, or an orderly society where individual freedoms take second place - such regimes are not indefensible.