(8) What is Scotland’s Rule of Law?

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In England the Rule of Law has been explained:

Perhaps the most famous exposition of the concept of rule of law was laid down by Albert Venn Dicey in his Law of the Constitution in 1895:

When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be 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. ...

... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.



The concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a "rule of law", a situation which many argue is applicable to several modern dictatorships. However, the "rule of law" is considered a pre-requisite for democracy, and as such, has served as a common basis for human rights discourse between countries such as the People's Republic of China and the West.

The rule of law is an ancient ideal of first posited by Aristotle as a system of rules inherent in the natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it.

The essential characteristic of the rule of law are:

i) Supremacy Of Law
All persons (individuals, institutions and government) subject to law
Supremacy of the law is a fundamental concept in the western democratic order. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.

The idea of the supremacy of law requires a definition of law (to which the above principles may go some way). This must include a distinction between law and executive administration and prerogative decree. A failure to maintain the formal differences between these things must lead to a conception of law as nothing more than authorisation for power, rather than the guarantee of liberty, equally to all.

The rule of law ensures that individuals have a secure area of autonomy and have settled expectations by having their rights and duties pre-established and enforced by law.

ii) The Concept of Justice
The concept of justice has three facets - interpersonal adjudication, law based on fault and an emphasis on procedures.

Interpersonal adjudication
This aspect of the concept of justice is based upon the rights and duties of the individual person. The liberal concept of justice is an interpersonal one - resolution of conflicts between individuals. Individuals can suffer or perpetrate wrong. Individuals can be punished, protected and granted restitution. Justice is an interpersonal thing. It consists in upholding that which is right and due as between persons. Social justice which involves society and groups is a concept which is directly antagonistic to the liberal idea. It is a concept which is nebulous and non achievable. Its proponents increase state power to affect it, with counterproductive results.

Even between persons, absolute justice is frequently unattainable. The best result which is practically and logically possible is not necessarily the perfect result. For example, in motor accident cases where one person suffers brain damage due to the negligence of a drunken driver, it is practically impossible to grant full restitution to the injured person. He can be compensated for medical expenses. He can be awarded a sum sufficient to improve his situation. He cannot be restored to his pre-accident condition. His brain damage cannot be repaired. It can only be ameliorated. It is not easy to determine a just punishment for the drunken drivers.

In other cases, perfect justice is logically (rather than physically) impossible. Such cases arise in situations where there are legitimate interests on both sides but the interests are in conflict. Only one can prevail. Someone has to lose. Justice requires that the better interest should prevail but that does not mean that there is no merit in the inferior interest. The law of adverse possession provides an illustration where the conflict is between an owner who has abandoned his land and another, professing to be the owner, sells it to a person who takes possession of it and improves it. There is merit (and possibly demerit) on both sides. The best that can be done is to develop rules to help ascertain which side has the better right.

Between persons, justice consists in upholding right behaviour and the courts can adjudicate between persons. Resort to the courts is only considered when a problem (a conflict) exists. The role of the judicial process is, therefore, the resolution of conflicts. Perfect justice cannot be dispensed by the state. The role of the courts is to deal with injustice once it has already occurred.

The traditional emphasis upon adjudication and non-recognition of so-called social welfare rights is evident in the protection which the law traditionally afforded to private property. The idea of redistribution of wealth is completely alien to the common law. A rich man cannot be sued by a poor man merely for being rich. Taxation was prohibited to the executive government, being confined rather to the representatives of the nation in Parliament, who were expected to be jealous defenders of their individual liberty and property.

Inter-personal adjudication is practical and realistic. By its very nature it deals with the real problems which arise between individuals, instead of those problems which arise solely in the minds of ideologues.

Law based on standards and fault
The second facet of the liberal concept of justice is that a person should not be disadvantaged or punished except for fault (intentional, reckless or negligent wrong doing, strict liability applying in exceptional circumstances). The idea of fault is the golden thread that runs through the fabric of the legal order. The Magna Carta contains one of its early manifestations. But the whole of the common law relating to crimes, civil obligations and property rights is characterised by the notion that fault underlies punishment or deprivation. A system of sanctions based on fault presupposes known and pre-existing standards of conduct which bind the community.

The industrial relations system is fundamentally structured on notions of distributive justice and undefined policy. It enables tribunals to vitiate contracts, to penalise certain classes and to reward others on the basis of unpredictable considerations, although in recent times employers have become their predictable victims. Consumer protection laws similarly disregard contractual rights and obligations in compensating losses incurred by consumers. In the field of family law, fault has been all but rendered irrelevant in the annulment of marriages, grant of custody, award of maintenance and the settlement of property. The examples can be multiplied.

The idea of commutative justice which has characterised the laws and customs of most civilised societies is now being progressively replaced by distributive justice. Commutative justice aims at correcting the violation of pre-existing rights. It seeks to give back to one what has been taken away from him or to give him adequate compensation in lieu of it. Distributive justice on the other hand aims at distributing wealth according to egalitarian schemes. In practice, distributive justice results in the creation of new rights and liabilities in substitution for those traditionally enjoyed or suffered under the law. These rights are created in accordance with the ideologies, prejudices, or subjective opinions of individual bureaucrats or members of tribunals who make decisions. Powerful pressure and interest groups influence those making the decisions. The law is particularised and rendered uncertain, thus undermining the foundations of justice and liberty.

Due process
The third feature of the liberal concept of justice is the emphasis on procedures. The liberal does not believe in the possibility of achieving equality, democracy, justice, the public good and other ideals through legislative and prescriptive action. Such a task is too complex for the human imagination, conception and execution. An emphasis on procedure is one of the foundations of the rule of law. Procedures provide for limitations on power. Procedures provide that before judicial, legislative or executive decisions are taken, a series of checks and balances are in place to mitigate against the possibility that the decisions will not be hasty, ill-conceived or based on corruption, passion, ideology or eccentricity.

The key institutional and procedural characteristics of a liberal legal order include rights which ensure that a person is not disadvantaged except according to rules of procedure and evidence established by law, which ensure a fair trial. These institutional safeguards give protection to the cluster of personal liberties associated with the criminal process, such as the right not to be imprisoned or held without trial, the right to be informed of charges and the right to be presumed innocent until proven guilty. The rules of procedure, evidence and natural justice also protect individuals from arbitrary governmental action and illegal deprivation of private rights. They are essential to the protection of individual rights of personal freedom and private property.
iii) Discretion
The keystone of the rule of law is the idea of the government of laws rather than the government of men. The keystone of the government of laws is legal control over human discretion. The existence of widespread discretion is therefore directly inimical to the existence of a liberal order. Discretions need to be exercised on the basis of justice or some real justification or even of mere reason. An unfettered discretion is an opportunity for temptation and for arbitrary, insolent, discriminatory, intrusive, socially engineering and corrupt, government. Where there are fixed laws there is (more or less) certainty, there is certainly impartiality (equality before the law) and consistency. A person may stand upon his legal rights without fear or favour. Discretion, on the other hand, undermines justice.
Discretion may exist in the context of executive, judicial and legislative branches of the modern state.
Executive discretion is the most dangerous of all forms of discretion. This is because its impact upon the citizen is immediate and uncertain. Legislative discretion is uncertain but not immediate. Judicial discretion is immediate but not uncertain. Executive discretion, in suffering from the effect of immediacy additional to uncertainty, is open to the greatest possible abuse. The administrator has immediate unfettered power over the individual who stands at his mercy. The opportunities for arbitrary, insolent, discriminatory, intrusive and corrupt activity as well as totalitarian social engineering, are maximised at this point.

iv) The Doctrine of Precedent
The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound (within prescribed limits) by prior decisions of superior courts. Adherence to precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. This stability gives predictability to the law and affords a degree of security for individual rights. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community.

A system based on precedent will be rational (without making reason its god), will be adaptable to varied and changing circumstances, will take into account all the varieties of human experience, will be highly practical and will be composed by the finest minds of many generations, tuned to a fine balance and learned in the art of detecting legal issues and resolving legal problems. The gradual development of the system will avoid the pitfalls of hasty and counterproductive reformism.

v) Common Law and Statute
The common law method of adjudication, in the context of the doctrine of judicial precedent is fundamental to the protection of rights and the prevention of arbitrary determinations.

What Is "The Common Law"?
What is the common law? The word common law is used in many different contexts. The word common law is used in the present context to describe the body of legal principles and concepts which were evolved over many centuries by judges in the English courts of law.

The common law was influential in moulding both the area of and restrictions on freedom in England and those parts of the world which have the common law tradition as their legal foundation. A study of the history, development and modern undermining of the common law is crucial to an analysis of the democratic order, which it has helped to shape and underpin.

The common law is the product of long evolved social values which are judicially articulated and interpreted. "Its roots strike deep into the soil of national ideas and institutions" (C K Allen, Law in the Making Oxford (1964) p 71). These rights (it used to be argued) are ingrained in the national psyche and conduct and command respect.

The crucial importance of the common law has tended to be forgotten in recent times in the course of searching for ad hoc solutions to social problems. This tendency has been the result of the pursuit of particular goals by special interest groups in disregard of long term damage to the foundations of liberty. Even persons who recognise the importance of these rights in their general application sometimes urge departures in relation to matters of particular concern to them.

One of the greatest virtues of the common law system is to be found in its capacity to balance the individual interests in liberty with the common concerns and interests of the community.

In the modern era, there is a growing belief that the solutions to these problems can be sought by deliberate and calculated reform of the law through legislation. Reforms are formulated by law reform agencies and by political and bureaucratic authorities through processes of abstract rationalisation or imperfect empirical investigation, sometimes based on Marxist and neo-socialist ideological assumptions. The evolved law is thereby fractured and reshaped with unpredictable consequences. Another consequence of this method is that it tends to remove questions of public morality from the community itself. It results in the imposition of restrictions on liberty which are inadequately founded on public perceptions. Imperfect rationalism and empiricism are poor substitutes for the accumulated experience of the community, enshrined in the common law. The common law experience reflects the wisdom and even the follies of our civilization. However, it represents an evolved public morality which is the soundest basis for the formulation of legal precepts (subject to comments below relating to modernisation and legislation).

The Virtues of the Common Law.
The common law method, as compared to reformist legislative change, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just conduct. In deciding these disputes the courts draw upon precedents embodying the public morality which have been developed over the ages. These principles, in the words of Charles Francis, QC, in an unpublished speech "... represent the collective legal wisdom distilled over many centuries from the finest legal minds in the English speaking world for the express purpose of defining, protecting and enforcing human rights and obligations". Through the process of disputation, debate and impartial adjudication, the common law reconciles conflicting interests and develops the necessary constraints on the liberty of the subject.

The question may be asked; what makes the courts superior to politicians, bureaucrats and academics as custodians of individual freedom and public interest? Three reasons may be given. One is the impartiality and competence which is associated with courts functioning in the common law tradition. Despite frequent attacks and attempts to denigrate these qualities they remain real in the public eye. Public confidence in the judicial system, as demonstrated by surveys, (notwithstanding academic and political attacks) surpasses its confidence in political institutions, the bureaucracy, the media and academia. This confidence itself encourages and promotes the impartiality and dedication of the judiciary. A second factor is that unlike political institutions, the common law courts have no licence to commit arbitrary acts. Judicial discretions, unlike political discretions, are strictly limited to the application or adjustment of already established norms and standards. Thus there are inbuilt restraints in the judicial method which ensure a greater degree of certainty and fairness. A third factor is that the common law itself is a product of reasoned disputation where individual rights and duties are claimed and evaluated. No comparable process obtains in the political system in which ideological considerations often prevail and aggressive pressure groups exercise influence without regard to reason, justice or community values.

Common Law Needs To Be Supplemented By Legislation
Legislation in a modern technological age is necessary and useful. The common law method, like all human creations, is imperfect. It can usefully be supplemented by legislative action. But modernisation is not the same as social engineering. Under the guise of modernism, social activists are implementing their policies. The complaint regarding the modern method is that the common law is being smothered out of existence and legislation has become the primary source of social regulation. Legislators and bureaucrats claiming a superior wisdom indulge in structuring and ordering society in disregard of the community consciousness and values. It is this kind of legislative activism that leads to progressive erosion of human rights under the colour of safeguarding public interests. In contrast, the common law method assimilates the public morality into legal principles through the direct participation of citizens in the assertion of their individual rights on the basis of the customary ways of the community. The restrictions on individual liberty that evolve from this process have a greater relationship to the needs of the people as perceived by the people themselves.

The common law restrictions on freedom are expressed in the form of criminal offences, civil wrongs and liabilities arising out of the sanctity of contract. When these restrictions are examined it is not difficult to see their relationship to the public morality and in particular to the religious beliefs and values of the community. For example, criminal offences such as murder, rape, theft and fraud are acts universally condemned by the ethical systems of all major religions. Such offences constitute the core of the restrictions on human conduct recognised by civilised societies.

Even in the absence of major religious influence, civilised communities consider such acts reprehensible and impermissible as they jeopardise human survival and well-being.

Each common law crime thus protected an institution or value which was considered to be of fundamental importance. Offences such as murder, rape and assault protected personal physical integrity. Crimes such as larceny, fraud and cheating protected private property.

Apart from crimes which were considered as prejudicial to the community as a whole, the common law developed other restraints against causing harm to person, property and reputation by recognising numerous torts or civil wrongs. These as well as actions based on contract enabled individuals to sue for damages. Together they formed a corpus of rules determining the boundaries of permissible and impermissible conduct. The development of the common law of torts in more recent times demonstrates the dynamism of the system to accommodate the needs of changing social and economic conditions. Employers' liability to provide working conditions and training adequate for the safety of workers is one example. The application of the law of nuisance to owners of property which through neglect causes harm to others is another example.

One of the problems of applying the common law method in the modern era is that circumstances posing dangers to society can arise suddenly and the common law response (relying as it does on appropriate litigation coming before courts) may not be sufficiently rapid to avert harm. In these circumstances it becomes necessary to create safeguards by legislative action. In such situations, although the common law may not provide an immediate remedy, its basic approach will provide valuable guidance for determining the justifiability and extent of proposed restrictions. The common law approach gives predominance to community perceptions and values (including moral and religious sensibilities) rather than to the views of lobbyists and political activists. What is important in such an approach is objectivity and impartiality. In other words, the modern legislator who contemplates placing a restriction on liberty, should approximate his role closer to that of the judge than to that of an ideologue or a person with received wisdom to effect far reaching changes in the public interest. It is only by such means that we can determine the perceptions and priorities of the community.

The common law approach is also characterised by the importance attached to personal freedom, the freedom of speech and expression and the freedom to hold and enjoy property. The precedence given to these rights flows from their indispensability for the enjoyment of all other rights and liberties.
In the common law system, fairness and objectivity in the resolution of disputes is sought to be ensured by time tested procedural and evidentiary rules. Thus a person is presumed innocent until proven guilty. There are rules for the exclusion of doubtful evidence and rules that guarantee a fair hearing. There are no comparable safeguards in the legislative method of determining rights and duties. As such, the onus on legislators embarking on restrictive schemes is even greater.

The Critics of the Common Law
The critics of the common law are never tired of pointing out the problems that have arisen as a consequence of common law decisions. In a world of imperfect human beings reacting with each other in an uncertain and accident prone environment, problems are inevitable. Yet the strength of the common law is appreciated if it is compared to other legal systems of the past and the present. If comparative studies are conducted, the record of the common law will appear infinitely superior to that of every other legal system the world has known except the civil law tradition.

The judiciary is not totally impartial and value-neutral. But impartiality is an ideal which the common law judiciary strive towards, even if imperfectly. In this context, is the solution for a lack of impartiality and the human failings, to abandon any pretence of objectivity and move to a position where rights are adjudicated upon by people who may be biased and who are freed from all the common law restrictions which aim to control and limit bias and arbitrary action? Is the establishment of tribunals with social activist and biased judges or administrators an improvement? The present trends do not inspire. Can it be said that modern activist dominated tribunals (eg the Human Rights Commission) will be an improvement on the traditional court in which the presumption of innocence and rules of evidence and procedure are important?

Although common law courts have not been value neutral, they have tended to express the prevalent values of the community. This is consistent with the idea that the law should be the emanation of the popular consciousness and not the arbitrary will of an individual or group.

The common law is subservient to laws passed by Parliament. In England, the common law has been overlaid by statute and exists today in an emasculated form. The common law therefore, does not, as it once did, offer protection for individuals, against the over reaching and ever-expanding power of government.

In England, the common law safeguards have had no discernible effect on the rise of Parliamentary supremacy, the growth of the welfare state and the expansion of government. In fact, just as much as eighteenth and nineteenth century English government inspired constitutionalism, twentieth century English government has set precedents for expanding the powers of government at the expense of constitutional limitations.
vi) Retrospective Legislation
Laws should apply prospectively and not retrospectively A person should never be made to suffer in law (criminal or civil) for an act which was not unlawful when he committed it. Retrospective legislation destroys the certainty of law, is arbitrary and is vindictive, (being invariably directed against identifiable persons or groups). Such laws undermine many characteristics of the rule of law.

vii) An Independent Judiciary
The most elaborate system of rights, remedies and procedures would be of little use when there is no independent, impartial and competent judiciary. The independence of the judiciary has been ensured by the judges' security of tenure as well as the judiciary's own distinguished traditions of learning, integrity and technique and the law of contempt. Independence of the judiciary was inextricably linked to the system of formal courts.

The most elaborate system of substantive, procedural and remedial provisions is meaningless without an independent, impartial and competent judiciary for one reason: administration. Without jurisdiction to administer, the law is purely academic and without a proper judiciary, the jurisdiction to administer is purely oppressive, as may be seen in numerous uncivilised countries of the world.

In order to have a proper judiciary, properly exercising its jurisdiction, several things are necessary. They fall into three broad groups: technical competence, commitment to sound ideals and finally, institutional (and therefore, personal) independence. Naturally, these groups overlap to a certain extent.

Although formal courts in the UK are yet largely independent, there has been a proliferation of a vast array of tribunals which are neither independent nor competent. These are the administrative tribunals which determine countless privileges and deprivations which are incidents of the modern welfare state. These tribunals are structurally prone to ideological manipulation and many of them are in fact directed by law to make decisions based on ideologically determined criteria. These control and/or reward systems are progressively replacing the system of independent adjudication based on formal rights. It is time for a new Coke to wage war upon those usurpers of judicial jurisdiction.

The ethos of the judiciary and the formal courts is being challenged by intellectual influences, particularly by a novel ethos of a "democratic" judiciary and by suspicions that Labour governments' policy of judicial appointment is sometimes based upon the criteria of philosophy and party loyalty before merit and judicial excellence.

viii) Limits on the Power of the Legislature to Delegate
The purpose of legislation according to Madison was to deal with general principles. Legislation should be about general principles not about details of policies. The function of the legislature in Madison's view is not to espouse or promote "various and interfering interests". Thus, Madison (the most influential of the draftsmen of the US Constitution) thought that legislation is primarily concerned with the determination of what Hayek was to later call "the rules of just conduct". Madison refers to "the good of the whole", "the common good", "the public good" and "the interest of the people" in relation to the proper aim of government. However, Madison's idea of the public good is very different from that of the modern interventionist.

Delegation of the law making function is inevitable in the modern state. The objectionable aspects of delegation which have undermined the rule of law are: the sheer magnitude and volume of delegated legislation, the abdication by Parliament of its duty to lay down "general principles" and the inordinate extent of uncontrolled discretions that have been conferred on the executive.

The control by Parliament over "general principles" is important for the functioning of the democratic order. Parliament is elected by and responsible to the electorate. A governing political party in Parliament is elected on the basis of its manifesto which then constitutes its mandate. If Parliament is restricted to legislation on "general principles", electoral control over Parliament and also over the executive is a possibility. The executive must act within the confines of laws passed by Parliament - otherwise it will be subject to the doctrine of "ultra vires" (acting beyond authority) and its actions will be invalid. The people may compare legislation with the Party manifesto and pass judgment. Thus the control over Parliament and the executive by the electorate breaks down due to:



ix) The Moral Dimension
Analyses of the rule of law will not generally refer to the moral dimension. There is in education, media, politics and even from within the church and its agencies an attack on traditional morality. The conflict is not between traditional morality and values neutrality. It is between one moral order and another - the values of the new moral order include: autonomy for the individual, equality and social justice. If law is not based on morality on what can it be based? The traditional moral values as defined in section in law and society are being replaced by a new set of values. The rule of law and the common law are in retreat because their moral base is being undermined.

There have been a number of criticisms of the concept of rule of law. One is that by focusing on the procedures used to create the law, one loses sight of the content and consequences of those laws. Another, which has been advised by critical theorists, is that the concept of rule of law is merely a method by which the ruling classes can justify their rule because they are in charge of determining which laws get passed or not (in other words, they argue that the rule of law is in reality the rule of those people who have the power to make or change laws). Yet another criticism of rule of law focuses on the emphasis that rule of law places against the prevention of arbitrary action. To take a very real example of these objections, if the Crown commences legal action against a political dissident, that action may not arbitrary or made by personal whim and it may be made exactly according to the law, but it may still be objectionable.

In response, it has been argued that even consistent bad laws can be better than no laws at all. To take the example of the political dissident, one can argue that with rule of law, the dissident at least has advanced warning of what could happen to him.

How does Scotland match up to the above descriptions?
Scotland remains an independent nation. It retained a separate legal system which is distinct from that of England and Wales. In many ways I find Scots law superior to that of its southern neighbour but not in respect of procedural law. In my opinion the rule of law in Scotland is blackened by the historic mindset and practices which dominate the judiciary and emanate out of Scotland’s Faculty of Advocates.  

There is one indispensable element in a free society. It is the rule of law. By that phrase, I mean the ideal under which every citizen is governed by the same law, applied fairly and equally to all; government favours may not be bought; and justice is administered blindly, in the sense that it never stoops to favouritism. Under this ideal, government decisions are not the whims of individuals. Rather, they are duly enacted into laws, which are then obeyed as they were written. Such is said to be the theory in Scotland but in my experience is not the practice.

One can decree governance structure and individual rights until one is blue in the face, but if there is no rule of law, then there is neither order nor liberty. Individual countries can best decide for themselves whether to opt for a Parliament, or another form of legislature, or whether to opt for a First Minister, President or a Prime Minister. But one element is necessary for any representative democracy to succeed: The rule of law; of which the most precious is the principle that all are equal under the law.

Quite simply this is not the case under Scots law, and to be fair most Scots lawyers do not attempt to argue that this is the position. This is a hangover from early Celtic law which still impacts upon the civil and Roman law foundations to current Scots law. Celtic society was hierarchical and inegalitarian. These characteristics are still reflected in Scots law. In Celtic law an offence against a person of high rank entails a greater penalty than the same offence against a person of lower rank. Similarly, the oath of a person of high rank automatically outweighed that of a person of lower rank. Native Celtic law never subscribed to the Roman principle of all citizens being equal under the law. Distinctions of rank still apply before the Scottish courts. In Celtic law the measure of a person’s status was his honour price. A person’s capacity to perform most legal acts was linked to his honour price. He could not make a contract for an amount greater than his honour price, nor could he go security beyond that amount. Likewise, his compurgatory oath and his evidence were only given a weight commensurate with his honour price. Similarly, the evidence of a single witness of low honour price was held to be invalid, and in a court dispute, a ‘lord of superior testimony’ with a high honour price of say 40 would alone automatically outweigh the testimony of a dozen witnesses who cumulatively only held a weight of 30. Only in the last twenty years has reform entered into Scots law upon many of these issues. Now a single policeman is an able witness where prior there was always a requirement for two; and the necessity of proof by oath for certain matters was only abolished in the 1990s. But Celtic hangovers still remain: for many years only the gentry had the right to employ counsel to represent them in court, an ordinary citizen had to plead his own cause. In the 17th century Stair, Scotland’s foremost institutional writer, warns, ‘if parties do not employ skilful advocates, it is their own fault, and ought not to prejudice others’ Stair Book IV, 1,50. Yet in practical terms the courts then still frowned upon the common man securing representation. Indeed, still today before the Scottish civil courts there exists a policy where most cases are still determined without enquiry into the facts but purely on the basis of legal argument upon written pleadings, such argument being advanced by the party’s counsels. Yet, apart from the complexity of the Scottish drafting rules a party litigant or litigant in person is not afforded the same status as a counsel opposing him. Thus it still occurs that a Scottish judge may determine a case upon the third hand testimony of counsel over the first hand testimony of the party litigant purely upon the basis that counsel retains superior testimony on account that counsel has a higher honour price; quite an anachronism for the 21st century.

Such Scottish practices are not only wrong from an ethical point of view, but also because it thwarts the rule of law, which ought to apply equally to all persons. The ultimate goal of our law is not just liberty, but ordered liberty. It is not the liberty to do whatever we want, whenever we want to, under whatever exceptions we devise for ourselves, at whatever cost to others we happen to inflict. Rather, it is the liberty to exist in society confident that we are governed by laws that apply equally to all. When laws are riddled with unjustified exceptions, or simply ignored or flouted, this liberty is crucially undermined. These types of actions have more intangible costs too -- for they harm an ideal: The ideal of the rule of law.

My Worry
It is a myth, largely promoted by the judiciary, that civil law in Scotland is perceived by the Scottish people to be fair. Perhaps those Scots who haven’t experienced it at first hand may believe such propaganda but head for head there appear to be more disgruntled civil litigants in Scotland than are to be found elsewhere within the Western world. Too often the Scottish legal system and judiciary has forgotten what their civil prime purpose is: namely to resolve other people’s disputes without the recourse to violence and/or the law of the jungle. In the civil function, the courts fail to appreciate that they are now society’s servant but instead the courts still maintain that those civil litigants before them are supplicants to the Crown; such belief leads to muddled thinking by the judiciary and great resentment by their customers. Indeed, as is found with Stuart Usher, on account of this perceived fault by the judiciary there is an increasing propensity for people to consider taking the law into their own hands.

Once, I believe such disquiet with the threat of violence could be overlooked and ignored by the legal establishment, this I no longer consider to be the case. Mal or wrong practice by our courts could well promote horrendous outcomes to society at large. For example in 1943, Thomas Watson, then chairman of IBM stated ‘I think there is a world market for maybe five computers’. We now have a few more; but do you realise that the same exponential growth can equally apply to terrorist acts. The nuclear threat from nations is overshadowed by others that could be as destructive, and far less controllable. Such may not come from ‘rogue states’, but from individuals or small groups with access to ever more advanced technology. Conceivably in the 21st century, ordinary citizens will command the destructive capacity that in the twentieth century was the frightening prerogative of the few individuals who held the reins of power in states with nuclear weapons. If there are to be millions of independents fingers on the button of Doomsday machines, then one person’s act of irrationality, or even one person’s error, could do us all in.

I personally know a lot of disgruntled litigants. Many of these are good people who often for no fault of their own have been betrayed by the Scottish legal system. Their anger appears to be multiplying and I fear it is only a matter of time before one or more of them translate their threats into action. We need the fundamental and perceived protection of the rule of law to mitigate this unrest otherwise the dispossessed will put society into bloody crisis.

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The Rule of Law as a Goal of Development Policy

A prominent concern in the development community is the "rule of law" and the related concepts from other legal systems -- "etat de droit," "estado de derecho," "rechsstaat."  Economic growth, political modernization, the protection of human rights, and other worthy objectives are all believed to hinge, at least in part, on "the rule of law." Policymakers in developing and transition nations are thus seeking ways to establish or strengthen the rule of law in their countries.  Investment rating services, non-governmental organizations, and other students of development are producing indices that try to measure the degree to which a nation enjoys the rule of law.

But overlooked in much of the dialogue about the rule of law is that the term has no fixed meaning. It originated in normative writings on law and government, principally by Western authors, and each tailored the term to fit his or her vision of the "ideal" or "just" state. As a consequence, one recent survey of how the term has been used in Germany, France, the United Kingdom, and the United States concludes that it "belongs to the category of open-ended concepts which are subject to permanent debate" (Grote 1999: 271).

Despite this multiplicity of definitions, most can be classified according to whether they emphasize formal characteristics, substantive outcomes, or functional considerations. The differences between these three conceptions and the implications of each for efforts to establish, measure, or foster the rule of law are described below.

Formal Definitions
Formal definitions of the rule of law look to the presence or absence of specific, observable criteria of the law or the legal system. Common criteria include: a formally independent and impartial judiciary; laws that are public; the absence of laws that apply only to particular individuals or classes; the absence of retroactive laws; and provisions for judicial review of government action. There is no definitive list of formal criteria, and different formal definitions may use different standards. What formal definitions have in common is that the "rule of law" is measured by the conformity of the legal system to these explicit standards.

The main advantage of a formal definition of the rule of law is that it is very clear, and relatively objective once the formal criteria are chosen. Choosing which standards to include may be controversial, but after the standards are made explicit, it is usually not difficult to observe the degree to which countries meet or don’t meet the standards. Formal definitions thus avoid more subjective judgements, for example about whether laws are "fair" or "just."
Formal definitions suffer from two major drawbacks, however. First, the formal conception may place too much emphasis on the "law in the books" and not pay sufficient attention to the "law in action." Official rules do not always (or even often) map onto the actual operation of the legal system. Thus a formal definition’s objectivity in observation may be purchased at the price of accuracy. Second, the formal criteria are chosen because there is an (often unarticulated) empirical presumption that those formal characteristics will lead to some substantive or functional outcome (Fuller 1964). Indeed, there is no other way to select the formal criteria.

But if that is the case, it suggests a flaw in the definition. What we really should be interested in – that is, the essence of the rule of law – is the substantive or functional outcome. Whether or not the formal characteristics contribute to that outcome ought to be a matter for research, not presumption. This suggests that the "objectivity" of the formal criteria may be illusory, since they are selected through subjective (and perhaps culturally biased) assumptions about the actual effect of the rules in question.

Substantive Definitions
An alternative to the formal approach to the rule of law is one that looks to substantive outcomes such as "justice" or "fairness." This approach is not concerned with the formal rules, except inasmuch as they contribute to the achievement of a particular substantive goal of the legal system. Unlike the formal approach, which eschews value judgements, the substantive approach is driven by a moral vision of the good legal system, and measures the rule of law in terms of how well the system being assessed approximates this ideal (Dworkin 1985).

The main advantage of the substantive version of the rule of law is the explicit equation of the rule of law with something normatively good and desirable. The rule of law is good in this case because it is defined as such. This is appealing, first because the subjective judgement is made explicit rather than hidden in formal criteria, and, second, because the phrase "rule of law" has acquired such a strong positive connotation. Many people cannot accept any definition that would allow, even in theory, a repressive or unjust regime to possess the rule of law.
But this explicit link between the rule of law and some conception of substantive goodness has drawbacks. First, and most obviously, determining how "just" a particular legal order is requires a subjective – and extremely complex – judgement call. Second, defining the rule of law as a "good" legal system risks making the concept so vague that it’s not very useful. Why should we bother talking about whether a society has or doesn’t have the "rule of law" when what we really are asking is whether the society is good or not? Third, the relationship between law and societal outcomes is problematic in the substantive definition. It is conceivable that there could be a society that had unjust law, or no law at all, and yet achieved substantive justice according to the normative criteria selected. On the other hand, one could imagine a society that had normatively perfect law and legal institutions, but where law was marginal to the point of irrelevance in actual social life, and where social outcomes tended to be normatively bad. Which society has more rule of law from the substantive perspective? Is it the law that must be good, or the social outcomes? If the former, then don’t all the problems with the formal definition apply? If the latter, why talk about law at all?

Functional Definition
A third approach to the rule of law is similar to the substantive definition, but tries to avoid the thorny normative issues by focusing on how well the law and legal system perform some function – usually the constraint of government discretion, the making legal decisions predictable, or some combination of both (Hayek 1960). One version of this view, for example, would hold that a society in which government officials have little or no discretion has a high level of rule of law, whereas a society in which they wield a great deal of discretion has minimal rule of law.

The functional definition of the rule of law is broadly consistent with the traditional meaning of the English phrase, which has usually been contrasted with "rule of man." It has the advantage, too, of defining the rule of law according to outcome-related criteria, but not requiring a moral verdict on the desirability of that outcome. The functional definition is narrow enough that it does not overlap with other more general concepts, and it makes questions as to the relationship of formal characteristics to the rule of law, and of the rule of law to substantive goals, researchable rather than tautological.

Nonetheless, the functional definition suffers from a number of difficulties. First, as with the substantive definition, the relationship between the legal system per se and the functional goal can pose problems. It is possible to constrain government officials or realize predictability through means other than the legal system. Suppose one society has less official discretion than its neighbour even though the latter has apparently more restrictive laws. Which enjoys a greater rule of law under a functional definition? Another problem is the fact that looking at "predictability" or "official constraint" or any other function makes it hard to make any definitive statement about the level of rule of law in a whole society. Government officials may make literally thousands of decisions each day in a given system. Some of them may be highly constrained, while others are not. It is not at all clear how to aggregate the levels of discretion for individual types of decisions into an overall measure of the rule of law.

An additional point that the functional definition illustrates most strongly is that, despite contemporary rhetoric, there is no a priori reason to believe that the rule of law (defined functionally or formally) is necessarily always a good thing. Consider the example of official discretion. Official discretion is often a bad thing – when seen as such, the behaviour is often called "arbitrary." On the other hand, sometimes official discretion is a good thing – in these cases, we tend to think of the behaviour as "flexible." But flexibility and arbitrariness may be two sides of the same coin. Whether official discretion is used for good or ill depends on a host of other factors. The rule of law, while often a good thing, can in some cases create problems. (This point, of course, does not apply to a substantive definition, where rule of law is good by definition.)

Conclusion
Policymakers need to be clear about they mean by the rule of law because answers to many of the questions they are interested in – whether "rule of law" facilitates economic development and whether democracy is a necessary precondition for rule of law, to cite just two examples – depend crucially on what definition of the rule of law is being used. Moreover, the multitude of rule of law concepts is likely to breed confusion and misunderstanding between donors and recipients, or even within different members of the same community.

Perhaps the most important point for development analysts, policymakers, and the donor community in general to keep in mind is that the rule of law has a number of different possible meanings. All of these definitions have problems, and which one is appropriate will depend on the task at hand. But the pros and cons of these various conceptions – and, more importantly, the differences between the definitions – need to be borne in mind. Indeed, in the end it may make sense for donors and policymakers to eschew the ambiguous rhetoric of the rule of law in favour of the articulation of more specific reform goals.