The Evolution of the Rule of Law
By Olavo Caiuby Bernardes and Horacio Bernardes Neto1
I – Introduction
The concept of the rule of law has faced strong evolution since its conception with the enactment of the Magna Charta, in 1215. The Magna Charta has established the Rule of Law as a modern phenomenon, by setting forth certain standards as due process of law, the submission of the Monarch to the British Parliament, and the right of a jury trial by peers. 2
One of the most important concepts of the rule of law is the right to Habeas Corpus which was originated by the Magna Charta but that was better established in the 1679 Habeas Corpus Act.3 There were further developments in the rule of law in Great Britain with the 1689 Bill of Rights. 4
Nevertheless, the rule of law faced strong developments by crossing the Atlantic and strongly influencing the 1776 American Revolution in its rebellion against the British Crown.5 The concepts of rule of law were brought in the 1776 Declaration of Independence, the 1787 US Constitution, the 1791 Bill of Rights (First Ten Amendments to the US Constitution), and later in the Fourteenth Amendment to the US Constitution, after the American Civil War (1861-1865), and during the Reconstruction Era (1865- 1871), which forbade any state to neither “deprive any person of life, liberty, or property, without the due process of law, nor deny to any person within its jurisdiction the equal protection of the laws”. 6 This was made specially to integrate formal slaves, freed by the 13th Amendment to the US Constitution, into the American Society.7
There is a strong principle in the rule of law’s concept and that is its constant evolution. The rule of law was not initially thought as necessary for a democratic society (the U.K. is a Monarchy, with nobility and property vote; and the U.S. was founded as a republic, with indirect voting in the Electoral College, and even after the abolition of slavery, poll taxes, literacy tests, among others, excluded a large percentage of voters – this not to mention the exclusion of women in both country from voting).8
Likewise, in countries such as Brazil, which after the Proclamation of the Republic in 1889, adopted formally the concept of universal suffrage, the percentage of voters was very low, not comprising more than 3% of the general population by 1930, when the 1930 Revolution came into place. A rural society, which adopted capacity vote, and literacy tests, and excluded women from voting was the main reason for that.9
In this sense, the Rule of Law establishing the prevalence of the Law for in state’s actions (from the German word, Rechtsstaat; in Portuguese, Estado de Direito) has evolved into the concept of Democratic State, or Constitutional State (in Portuguese, Estado Democrático de Direito), where fundamental rights and rights of the minorities are protected, and into a Welfare State (in Portuguese, Estado de Bem Estar Social de Direito), where the government provides a safety net and opportunities to all citizens, the so-called “Welfare Society”. 10
II – The Rule of law in modern society
The concept of a Welfare State shows the flexibility of the Rule of Law, to adapt to modern society. Initially, social rights (right to health, right to education, labor protections, and social security, among others) were brought after post-World War I by the 1917 Mexican Constitution (enacted after the 1910 Mexican Revolution), and the 1919 German Constitution, which established set the Weimar Republic. As it is known, the 1930s was a period marked by the rise of totalitarian regimes, such as Communism and Fascism in different societies, particularly all over the European Continent, and the evolution of the International Liberal Order and the Rule of Law (in Europe at that time represented solely by Winston Churchill’s Great Britain) faced enormous jeopardy.11
It was after the end of World War II, that countries in Western Europe, in particular, but also countries in the Western Hemisphere, such as Canada, Australia, and New Zealand (that, by the way, was the first country in modern society to recognize women’s right to vote, in 1893), that many societies were shaped into Welfare and the Constitutional Democratic States. In the same fashion, countries such as Japan, South Korea, Hong Kong, Singapore, and Taiwan, in East Asia have joined the Rule of Law and developed into the Asian Tigers, with rapid development in the post-war period.12
Nevertheless, currently in the 21st Century, the world faces deep threats, such as the rise of populism, terrorism, transnational crimes, economic crisis, religious persecution and persecution of minorities, and also climate change, a severe refugee crisis brought by those factors, and outgoing wars that cannot be handled individually by national states, in a post-pandemic world.13
As for the concept of rule, in a recent speech at Gray’s Inn, by the Hon. Stephanie Boyce, President of the Law Society, mentioned the former Senior Law Lord, Lord Bingham’s more modern definition of the rule of law.14 As observed by Boyce, “rather than three principles, Lord Bingham outlined eight principles that he considered to be fundamental to the rule of law. These are: 1. The law should be accessible and predictable; 2. Legal questions should be determined according to law, not by the exercise of discretion; 3. The law should apply equally to all, except where objective differences justify differentiation; 4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably; 5. The law must afford adequate protection of fundamental human rights; 6. Means must be provided for resolving without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve; 7. Adjudicative procedures provided by the state should be fair; and 8. The state must comply with its obligations in international law as in national law”. 15
We highlighted items 5 and 8 above, to show that the world is evolving into a new phase of the Rule of Law, which is the protection of diversity, corporate compliance among nations, and environmental protection.
In such a sense, we can hence the International Treaties that have evolved since the early 90s, initially as soft law, such as the United Nations Conference on Environment and Development (UNCED), in Rio (Eco 92) that evolved into later agreements, such as the Johannesburg Declaration on Sustainable Development, in 2002, and culminating with the 2015 Paris Agreements, a legally binding document, establishing stronger targets and goals for all nations involved, having been already signed by 196 nations involved. 1617 In this sense, environmental protection, such as sustainable development, as constitutional fundamental rights, have been adopted by many Western nations starting in the 70s, when the Stockholm Declaration, the first major treaty on the environment, came into place. 18
As for the protection of diversity and compliance as key components of the Rule of Law, hence that after the 2008 Financial Meltdown, many countries have gathered a body of compliance of rules, through entities such as the OECD – Organization for Economic Cooperation and Development, other international organizations, including the IBA – International Bar Association.1920 Such protections created the acronymic ESG – Environmental, Social, and Governance that has been increasingly expanded into becoming the norm for many companies and government entities abroad. ESG regulations come as the UN provided Ten Principles of the UN Global Compact, as listed below: 21
Human Rights – Principle 1: Business should support and respect the protection of internationally proclaimed human rights; Principle 2: Make sure that they are not complicit in human rights abuses; Labor – Principle 3: Businesses should uphold the freedom of association and the effective recognition the right to collective bargaining; Principle 4: The Elimination of all forms of forced and compulsory labor; Principle 5: The effective abolition of child labor; Principle 6: The elimination of discrimination in respect of employment and occupation;
Environment – Principle 7: Businesses should support a precautionary approach to environmental challenges; Principle 8: Undertake initiatives to promote greater environmental responsibility; Principle 9: Encourage the development and diffusion of environmentally friendly technology;
Anti-Corruption – Principle 10: Businesses should work against corruption in all its forms, including extortion and bribery.
The UN also developed the Principles for Responsible Investment (PRI), an international organization that promotes the incorporation of ESG factors into investment decision making. PRI offers six principles meant to guide the actions of institutional investors seeking to incorporate ESG factors into investment practices and performances. Those are: 22
Principle 1 – We will incorporate ESG issues into investment analysis and decision making processes; Principle 2 – We will be active owners and incorporate ESG issues into our ownership policies and practices; Principle 3 – We will seek appropriate disclosure on ESG issues by the entities in which we invest; Principle 4 – We will promote acceptance and implementation of the principles within the investment industry; Principle 5 – We will work together to enhance our effectiveness in implementing the principles; Principle 6 – We will each report on our activities and progress towards implementing the principle.
The PRI and the UN Global Compact’s 10 Principles provide a core framework that can direct ESG goals, metrics, and reporting outcomes. In this sense, not only more countries and supranational organizations have been adopting those core principles, particularly in the European Union, 23 but some countries, after the 2008 crisis, such as Iceland, a country whose financial system suffered a general meltdown, have enacted a new Constitution with stronger popular participation and incorporation of stronger compliance, environmental and diversity protection.24
In more recent times, in times marked for general street protests, Chile, which has a history of a harsh Human Rights Abusive Regime, particularly the Pinochet Era (1973- 1990), led by General Augusto Pinochet, and the 1980 Chilean Constitution made to preserve certain authoritarian policies even after its transition to democracy, on March 11, 1990,25 after the October 2019 protests that swept that country, had a political agreement between parties with parliamentary representation, and called for a national referendum on the proposal of writing a new Constitution and the mechanism to draft it.26 The plebiscite was held on October 25, 2020, resulting in the approval of a new fundamental charter to be enacted, as well as choosing a Constitutional Convention fully elected through popular vote to fulfill this objective. The members of the convention were elected in May 2021, and the Assembly first met on July 4, 2021. The members of the Constitutional Convention resulted in a much more diverse body with members from the whole Chilean society such as native indigenous, a balanced assembly between males and females, and people from different sexual orientations, and is still deliberating on the submitted topics, its results to be ratified by that country’s citizens by a future national plebiscite.27
III – Conclusion
As it can be seen, not only in private practice, but also in state practice, the Rule of Law evolves into a more inclusive concept than what has been initially thought when the enactment of 18th Century Declarations, such as already mentioned 1689 British Bill of Rights, the 1776 US Declaration of Independence, and the 1789 French Universal Human Rights Declaration (Déclaration Universelle des Droits de l'homme), and, therefore, in Democratic States, includes the protection and advancement of its citizens, regardless of ethnicity, gender, sexual orientation, or any other type discrimination, as well a sustainable environment for future generations.
6 See US Constitution – Fourteenth Amendment. Available at: . Accessed on Jun. 10. 2022. 7 On the process and ratification of the 13th Amendment, by several states, we recommend the Academy Winning Movie, Lincoln (2012), with Daniel Day-Lewis in the title role. 8 See Vox – The real reason we have an Electoral College: to protect slave states, by Sean Illing. Available at: < https://www.vox.com/policy-and-politics/2016/11/12/13598316/donald-trump-electoral-college slavery-akhil-reed-amar>. Accessed on Jun. 10. 2022. 9 See CARVALHO, José Murilo de. Os Bestializados. Companhia das Letras. 1987 (in Portuguese). Available at: . Accessed on Jun. 10. 2022.
10 JONES, Harry W. The Rule of Law and the Welfare Society. Columbia Law Review. Vol. 58, No. 2 (Feb., 1958), pp. 143-156. Available at: < https://www.jstor.org/stable/1119825>. Accessed on Jun. 10. 2022. 11 See HOBSBAWN, Eric. The Age of Extremes: The Short Twentieth Century, 1914-1991. Vintage Books, 1994. 12 World Atlas – Who Are the Four Asian Tigers. Available at: . Accessed on Jun. 10. 2022.
13 IKENBERRY, John. The End of the Liberal International Order? International Affairs, Volume 94, Issue 1, January 2018, Pages 7–23. Available at: < https://academic.oup.com/ia/article/94/1/7/4762691?>. Accessed on Jun. 10. 2022. 14 Plato Dictionary (Stanford University) – The Rule of Law. Available at: < https://plato.stanford.edu/entries/rule-of law/#:~:text=The%20Rule%20of%20Law%20comprises,norms%20that%20govern%20a%20society>. Accessed on Jun. 10. 2022. 15 Link to Stephanie Boyce’s speech. Available at: file:///C:/Users/Olavo%20Franco/Downloads/I%20Stephanie%20Boyce%20Grays%20Inn%20speech%2 0rule%20of%20law%20(2).pdf>. Accessed on Jun. 10. 2022.
16 United Nations (UN) – United Nations Conference on Environment and Development (UNCED), Earth Summit. Available at: . Accessed on Jun. 10. 2022. 17 United Nations Climate Change (UNFCC) – The Paris Agreement. Available at: . Accessed on Jun. 10. 2022. 18 United Nations (UN) – United Nations Conference on the Human Environment, 1972, Stockholm. Available at: . Accessed on Jun. 10. 2022. 19 Homepage – Organization for Economic Co-operation and Development (OECD). Available at: . Accessed on Jun. 10. 2022. 20 Homepage – International Bar Association (IBA). Available at: . Accessed on Jun. 10. 2022. 21 Goby – 16 foundational principles for ESG reporting. Available at: . Accessed on Jun. 10. 2022.
22 Id. 23 See the European Parliament (2019-2024), Committee on the Environment, Public Health and Food Safety’s Resolutions. Available at: . Accessed on Jun. 10. 2022. 24 See Open Democracy – The Icelandic constitutional experience, by Giulia Dessi. 23 October 2012. Available at: < https://www.opendemocracy.net/en/icelandic-constitutional-experiment>. Accessed on Jun. 10. 2022.
25 Republic World – Protests Mark Start of Chile Constitutional Convention. Available at: . Accessed on Jun. 10. 20222. 26 Constitution Project – Chile’s Constitution of 1980 with Amendments through 2015. Available at: . Accessed on Jun. 10. 2022. 27 Wikipedia – Constitutional Convention (Chile). Available at: https://en.wikipedia.org/wiki/Constitutional_Convention_(Chile)>. Accessed on Jun. 10. 2022.
