第848期：Rule of Law vs. Rule by Law
Pardon me but today I have to write in English, for the proverbial concerns and reasons.
Many people are confused by two legal terms: rule of law, and rule by law.
Many states purposely blur the differences, confounding the two by fiat.
The nuance here is not only in the prepositions (of and by), but also the origins and connotations.
To put it in layman’s terms (quote from plato.stanford.edu):
-
Rule of Law is supposed
to lift law above politics.
The idea is that the law should stand
above every powerful person and agency in the land. -
Rule by law, in
contrast, connotes the instrumental use of law as a tool of political
power.
It means that the state uses law to control its citizens but
tries never to allow law to be used to control the state.
The concept of Rule of Law is believed to be popularized by A. V. Dicey in 1880s in his Introduction to the study of law of Constitution.
It has three tenets:
-
Equality before law
-
Presumption of innocence unless proven guilty
-
Primacy of rights over Constitution
Rule by law is ruling as per the law.
The difference between the two can be simply put as:
Rule of Law = Rule by law + Values
*Values include but not limited to liberty, equality, fraternity, justice and others.
(Quote from Pranav Manghat at Quora)
In a nutshell, Rule of Law is to put power in the cage of rules; whereas Rule by Law is to put rules in the cage of power.
【法制】就是把权力关进制度的笼子里；
【法治】则是把制度关进权力的笼子里。
*Quote from https://www.zhihu.com/question/20498862
The other day I read this:
How do you know if you are living in a rule-of-law state or a rule-by-law state?
Easy.
Suppose one of your family members was arrested by the police for reasons you don’t know, what would be your first reaction?
Would you call a lawyer immediately, or would you turn to your acquaintances who have clout (关系) with the authorities for help?
Dare you rely on your lawyer only?
You dare not.
Then you are not in a rule-of-law state.
Simple as that.
