Author: Martin van Staden

Date: 20 October 2015

The ‘Rule of Law’ has become somewhat of a buzz-phrase that politicians and activists in civil society use quite liberally.

It has often been used to denote the opposite of its true meaning, thus we risk it being rendered meaningless as a whole. But such a concept does exist, in our law and, more importantly, philosophically.

Section 1(c) of the Constitution of South Africa states that a foundational value of the South African state is the supremacy of the Constitution and the Rule of Law. Usually, attention is only paid to the first part of this supremacy clause, while the rest is ignored as useless filler. However, this provision assigns co-equal status between the Constitution, its principles and text, and the Rule of Law and its principles.

While the concept is notoriously contentious in terms of a definition, the Rule of Law can best be described as the opposite of the rule of man. All people are to be held to the same standard, regardless of their social standing or their personal connections with those in power. There is ‘discretionary rule’ or ‘arbitrary rule’ when men, and not objective law, prevail in governing a modern society.

Friedrich von Hayek, the renowned Austrian economist and legal theorist wrote in The Constitution of Liberty, that civilised living is only possible when individuals act in accordance with certain rules. These rules developed unconsciously, not deliberately, over centuries, indeed millennia, as human beings realised that their interests often conflicted. If they were deliberate, it would “rank among the greatest human inventions.”

Like language and money, the law came about spontaneously without being consciously invented. It is thus that the mere existence of an Act of Parliament based on political considerations cannot be said to be an instance of the Rule of Law. If it is not based on true law, it is merely a manifestation of the arbitrary rule of man.

We were not taught that we are not allowed to murder or hurt others because schedule 1 of the Criminal Procedure Act says we cannot. Looking at legal codes dating back millennia, it is clear that there has existed a universal consensus in human civilisation, that certain conduct is simply not allowed. Hayek, in this context, refers to the “delimitation of individual spheres.” Formulated differently, you can do as you please to the extent that it does not involuntarily harm another.

Hayek sums up the concept of the Rule of Law in the following excerpt:

“It is because the lawgiver does not know the particular cases to which his rules will apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule. Because the rule is laid down in ignorance of the particular case and no man’s will decides the coercion used to enforce it, the law is not arbitrary. This, however, is true only if by ‘law’ we mean the general rules that apply equally to everybody.”

The Rule of Law is part and parcel of the South African legal regime and carries constitutional strength. In fact, it has been part of our common law long before the Constitution was conceived, which despite Apartheid, gave South Africa a highly developed and rich legal culture which other tyrannical states could never achieve. Unfortunately, where the Rule of Law was needed most – to protect individual rights – our former oppressive Parliament simply passed legislation which could override the any common law principle.

What is needed today is an understanding of the concept. The Constitution does not reign supreme in isolation; section 1(c) clearly states “and the rule of law”. If the South African civil-political society internalises the idea that we cannot simply pass legislation for every perceived issue (e.g. smoking ban, regulation of the media, new taxes, etc.), which treats our fellow citizens unjustly and unequally, the Rule of Law can be said to exist substantively.

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Martin van Staden

Martin van Staden LL.B. (Pretoria) is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria.

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