Law Overruled: Strengthening the Rule of Law in Postconflict States (Essay)

The rule of law can be seen as an ideological product of Western political thought, closely associated at its origin with the writings of John Locke and Baron de Montesquieu. Locke started with the idea of natural law, in which man had intrinsic rights, not just those granted by a ruler. He posited that men came together in an organized community to gain advantages they could not gain individually in a state of nature--for example, the protection of their person and property. This community was bound by a social contract that formed the basis for government. In this "contract," subjects agreed to give the ruler power only insofar as their own welfare was increased and their property protected. Montesquieu focused on methods of governance and concluded that it was essential to limit and circumscribe power so as to make it work in furtherance of the social contract rather than as an end in itself. The solution was the separation of powers; the executive, legislature, and judiciary all had an interest in checking each other to make sure none abused their power, thereby ensuring their own limited power. This principle was later taken forward by the American independence thinkers and gave rise to what is known as constitutionalism. The judiciary, in this system, would make sure that the executive rules according to the laws passed by the legislature and that the legislature cannot legislate outside the bounds of the founding document--the constitution--guarded by the judiciary. The law thus ruled. Derived from political theory, the rule of law was always an ideal. This is reflected linguistically. European languages use the word law (droit, diritto, derecho, recht) to express both the idea of a legislated norm and the idea of a right. It is in this second sense that the "law" in the "rule of law" should be interpreted. Etat de droit, stato di diritto, estado de derecho, and Rechtsstaat refer to a state run on the higher principles of rights and justice and are opposed to a state merely administered by laws, which in German is called Gesetzesstaat.