Back in 1750 BC Babylonian King Hammurabi’s Law Code became the first recorded case in which a ruler acknowledged a higher authority (the gods Anu and Bel) to lend legitimacy to his laws. This then was the first, ancient precursor to the rule of law.

“(And) then Anu and Bel (both gods) called by name me, Hammurabi, The Exalted Prince, who feared God, to bring about the rule of righteousness in the land. To destroy the wicked and the evil-doers; so that the strong should not harm the weak”.

This injunction is inscribed as the preface to Hammurabi’s famous Law Code of 1750 BC. The Law Code, proclaimed in obedience to the command, was recorded on a series of tablets, a remnant of which is on display at the Louvre in Paris. To ensure that all citizens were familiar with the law, the Code was publicly displayed in the city-state of Babylon.

This is the first recorded case in which a ruler acknowledged a higher authority from which the legitimacy of his laws was derived. Anu and Bel did not instruct Hammurabi on the actual content of the laws that he was to proclaim; that was left to his judgment (and with the advantage of a different perspective, it will now be said that his judgment failed him). The instruction that was given and that was publicly acknowledged by Hammurabi was however unambiguous: he was to bring about the rule of righteousness in the land.

The rule of the king was absolute

Until that time, and for many centuries thereafter, the rule of the king was absolute. The king could make whatever law he chose; he could, upon a whim, make and unmake laws to suit any purpose that he required; he could make contradictory laws, laws that made unlawful actions which had been lawful at the time they were performed, and command the summary execution of anyone whose presence offended his personal caprice.

Hammurabi’s rule, however, required a fealty to the command of the gods, whom he feared. This was a commitment that was materially different to the authority that derived from the Divine Right of Kings, which asserted that the king acquired his right to rule directly from God: whatever the king chose to do was presumed to have been ordained by God.

This doctrine probably had its origin in the biblical account of the Prophet Samuel’s anointment of Saul as the Moshiach of Israel. According to the received religious dogma, this meant that Saul became invested with godlike authority. In the Middle Ages, this canon of faith became formalised, with the reign of James I of England and Louis XIV of France. Under the doctrine, the king could do no wrong, not even in the eyes of God, upon whose authority he performed all his actions, both religious and temporal.

In contrast, it may be presumed that Hammurabi would have believed that a watchful eye was being kept on the performance of his obligations; moreover, the well-publicised acknowledgement of his duty would surely have restrained whatever impulse he may have had to act in violation of the sacred trust. The “rule of righteousness” can, after all, not be readily misconstrued as the rule of wickedness. In this way, the rule of Hammurabi was subjected and subordinated to the rule of Anu and Bel.

Ancient precursor to the rule of law

The rule of Anu and Bel is therefore the first, ancient precursor to the rule of law.

Although there is frequent mention of the rule of law in South Africa in the wake of what has been described as a state under the control of a criminal elite, the concept is much misunderstood, even within the ranks of legal academics. This confusion is unnecessary as the essential purpose of the rule of law is not as obscure as is generally supposed; nor is it as complicated.

The confusion probably arises from a misleading descriptor. The term, rule of law suggests to many, rule by, or according to law. This is only partially accurate. The French, who adopted the principle from the ideas of the Enlightment, have a far more accurate term: Le principe de legalite. The principle of legality. The Germans also have a better expression than the one adopted by English-speaking communities: Rechtstaat. A state under law.

Le principe de legalite says much more than the rule by law. It sets a requirement of legality for all law: if the law fails the test of legality, although enacted by the appropriate authorities, it fails the requirement that even the given law must itself be lawful, failing which it becomes illegitimate.

Much of the confusion about the rule of law arises from the proliferation of rules that have been expressed about the essence of the doctrine. Professor AV Dicey extracted three fundamental principles; the legal scholar, Kim Davis, has seven principles; the respected World Justice Project enumerates “four pillars”, and the former Lord Chief Justice of England and Wales, Lord Bingham, had “(one)…core principle”… and he was mistaken.

Misconceptions about the rule of law

There are three significant misconceptions about the rule of law that have contributed to all the confusion.

The first is that the rule of law is an instrument for the creation of law. This is not so; it is the barrier against the enactment and enforcement of unjust and oppressive law. It is not the lawmaker, it is the gatekeeper.

Some of this misunderstanding arises from a definition that has gained currency within the ranks of legal scholars. This definition has been variously expressed as, government of law and not of man; or, the rule of law and not the rule of man.

The trouble with this definition is that it creates a confusion between the process of government and the oversight of government. The rule of law is not, in any way, actively involved in the former, but is very much committed to the latter.

Man is unquestionably instrumental in the process of law-making, and, although all man-made law should pass the test of the rule of law, the law that is made, is made by man. Any suggestion that it is otherwise, is a fiction. The purpose of the rule of law is not advanced by a fiction.

US Federal Tax Code

This definition is further corrupted by the idea that a society must, for its existence, be subjected to an ever increasing burden of laws. The better view, consonant with the philosophy of John Locke, is that the only morally permissible law is law that serves a social utility while preserving the principle of individual liberty. An eminent example of the abuse that occurs with the proliferation of man-made law is found in the 75,000 pages of the US Federal Tax Code.

In 1809, author Thomas Charlton wrote: “The price of liberty is eternal vigilance”. The real threat to personal liberty comes always from the lawmaker and it is the rule of law that assumes the first line of defence against that threat.

The second misconception is the idea that the rule of law is a product of the law-making process. The correct view is that the rule of law is antecedent to law making.

The former Lord Chief Justice of England and Wales was mistaken when he proclaimed that “The core principle (of the rule of law) is that all persons should be bound by and entitled to the benefits of laws publicly made taking effect in the future and publicly administered by the courts”.

Suggestions to amend SA’s constitution

It has already been suggested by some ANC members, including cabinet ministers, that the ANC and the EFF should form an opportunistic alliance to amend the constitution to enable the expropriation of property without compensation. If this was done and thereafter enacted into law in the normal way by parliament, it would likely be publicly enforced by the courts, especially if the law craftily decreed (in compliance with an existing Constitutional Court judgment – Agri South Africa v Minister for Minerals and Energy) that all expropriated property would be held by the state, as custodian for the people. In that case, all the requirements of the Bingham test will have been fulfilled. Can such legalised theft ever be said to comply with the rule of law?

Robert Taylor, a prominent libertarian writer, wrote recently under the title, The Myth of the Rule of Law (Ludwig von Mises Institute, 5 May 2017) of the propensity of government for legalised extortion and criminality (an idea first proposed by Max Weber). The rule of law was, according to this writer, simply a device imposed by the state to dupe the populace into a sense of trust in the inherent malevolence of the nation state.

Much of the article is accurate, but the assertion that the rule of law is imposed by the state is fundamentally mistaken. The rule of law is never imposed by the state; it is always imposed against the state, and, when properly understood and applied, it is an effective device for the control and limitation of state power.

Dicey was clear on the source of the rule of law. He wrote, “Whereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution (the rule of law) is the result not the source of the rights of the individual”. (Emphasis added.) Jurisprudential scholars locate the source of the rule of law in the natural law.

Failure of law and order

In South Africa, the constitution stipulates, as a founding value, the supremacy of the constitution and the rule of law. Notwithstanding this provision, the constitution required an act of parliament (Act no. 108 of 1996) to give it the force of law; the rule of law required no such formal enactment: there is no Rule of Law Act. The rule of law simply is.

The third misconception arises when the rule of law is conflated with law and order. Even lawyers have been heard to say that the rule of law has failed because of a failure of law and order.

In her analysis of the requirements for the rule of law, Kim Davis stipulates law and order as the very first of a list of seven. Fortunately, there are few, if any, other legal scholars who have made this mistake.

The matter may be tested in this way: Suppose there exists some rule of law nirvana; a state under the tutelage of a playwright-philosopher like Vaclav Havel, the former president of the Czech Republic. A criminal gang decides that it has detected an easy prey and begins its criminal regime in exploitation of the rectitude of the administration. As a result law and order begins to fail. In these circumstances, it would be fundamentally wrong to suggest that the rule of law has failed.

A persistent inability to enforce law and order will undoubtedly have an adverse effect upon the rule of law but this does not mean that the former is intrinsically a part of the latter. A failure of the criminal justice system may have many causes: a corrupt police force, an overwhelming criminal element, incompetence within the prosecutorial authority, or even unmotivated or inadequate judicial officers.

These are all matters of the gravest concern, but in a situation where the laws are just and, when applied, are justly applied, they do not reflect upon the rule of law. Where, however, a failure results from wanton or deliberate conduct designed by a person in authority to undermine the law, the rule of law is violated.

The many rules that are said to constitute the rule of law all have one central purpose: to protect the individual from the excesses of a predatory government; even procedural rules such as the requirement for proper administrative and enforcement machinery have, at their core, that purpose.

The task of the rule of law, therefore, is to secure the right to individual liberty against the prospect of unjustified invasion by the state and its agencies. The rule of law is the barrier that the law sets against tyranny.

Author Rex van Schalkwyk is a former judge of the Supreme Court of South Africa and is the chairman of the FMF’s Rule of Law Board of Advisers. He is the author of three books and numerous published articles. This article is based upon a talk given at the Africa Liberty Forum on 24 May 2017.