The Dual Development of Rule of Law and Judicial Independence

Abstract

The rule of law is a concept open to varying interpretations. Nevertheless, it can be categorized by two main definitions: (1) the definition based on the ends that the rule of law is intended to serve within society, such as upholding law and order and providing efficient and predictable judgment; and (2) the definition based on institutional attributes that can actualize the rule of law, such as comprehensive sets of laws, trained law-enforcement agencies and a well-functioning court system.¹ The ends-based definition of the rule of law is composed of five elements: a government bound by law, equality before the law, law and order, efficient and predictable rulings and human rights. The institutional attributes like publicly known laws, noncorrupt police force and operative courts can lead directly to the improvement in the ends of the rule of law. Conversely, “poorly devised reforms of rule-of-law institutions can undermine rule-of-law ends.”² The rule of law, according to E. P. Thompson, is “an unqualified, universal good.”³ It is a “universal good” in the sense of limiting the power of the government. The rule of law “will protect the community from government oppression.”⁴ The second indispensable element of the rule of law, apart from its universality nature, is formal legality, which is not only essential in preventing the government from coercing persons or property but also “valuable in providing security and predictability of transactions” among strangers and among members of different communities.