Background: even the king is under the law
- 1215 King John, cornered by his barons, seals Magna Carta: no free man shall be seized or imprisoned "except by the lawful judgment of his peers or by the law of the land."
- 1780 The Massachusetts Constitution, drafted by John Adams: "a government of laws and not of men."
- 1803 Chief Justice Marshall quotes that line in Marbury v. Madison.
The National Archives has a nice Magna Carta feature.
Theory: what does "rule of law" actually mean?
British constitutional scholar A. V. Dicey (1885) boiled it down to three ideas:
- Nobody is punished except for a clear breach of established law (no arbitrary power)
- Officials and ordinary people answer to the same law in the same courts
- Rights are actually protected through court decisions
American legal philosopher Lon Fuller went further in The Morality of Law (1964). He listed eight things a legal system has to get right to count as law at all.
The theory's tidy. The real test comes when power tries to stand above the law, and someone has to make that call. That job has always fallen to courts and lawyers. In 1974, a sitting President argued that his private conversations were off-limits even to the courts.
The ruling: the Nixon tapes
- Citation
- United States v. Nixon, 418 U.S. 683 (1974)
- Vote
- 8–0 (Rehnquist recused), opinion by Chief Justice Warren Burger
- Issue
- Could the President use "executive privilege" to refuse a subpoena for White House tapes in the Watergate prosecution?
- Holding
- A generalized claim of privilege can't override a specific need for evidence in a criminal trial
Sixteen days later, on August 9, 1974, Nixon resigned. Full opinion on Justia.
In Korea: lawful administration
Korea's Constitution never actually uses the phrase "rule of law," but the Constitutional Court treats it as a foundational principle. Then in 2021, Article 8 of the Framework Act on Administration wrote the "principle of lawful administration" into statute.
| Concept | Meaning | Example |
|---|---|---|
| Supremacy of statute | Administration can't violate statutes | A ministry rule that contradicts a statute is void |
| Statutory reservation | Restricting people's rights needs a statutory basis | A business suspension with no statutory basis is unlawful |
Germany's idea of the Rechtsstaat shaped Korean administrative law a lot. Rough difference: the Anglo-American rule of law is court-centered; the Rechtsstaat is statute-centered.
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Criticism and debate
- Thin vs. thick: if a terrible law follows all the right procedures, is that still rule of law? That's the heart of the famous Hart–Fuller debate.
- Sliding into rule BY law: authoritarian governments can chant "rule of law" while passing laws that punish their critics.
- Leaning on judges: if judges get the final word, who checks the judges?
The rule of law starts by refusing to trust "good" power. Weirdly, that's what makes it reassuring. Once this sinks in, you'll notice that a huge chunk of administrative law boils down to one question: "where's the legal basis?" Here's how to use that.
Study notes
- Administrative law (Korean material): Legal Nature of Administrative Rules and Whether They Are Binding Law: External Effect of Discretionary Guidelines, Competing Theories, Statute-Supplementing Rules and Case Law tackles whether internal agency rules bind citizens, a great example of statutory reservation in a real dispute.
- Connected ideas: the rule of law pairs with separation of powers. How far the state can restrict rights is the job of proportionality.
References and official sources
- Magna Carta (1215). National Archives
- Massachusetts Constitution, Part the First, Art. XXX (1780).
- A. V. Dicey, Introduction to the Study of the Law of the Constitution (1885).
- Lon L. Fuller, The Morality of Law (1964).
- United States v. Nixon, 418 U.S. 683 (1974). Justia
- Framework Act on Administration, Art. 8 (Korea). law.go.kr