Libya, Violence and Free Speech

Stanley Fish

The New York Times, September 17, 2012

Back when Salmon Rushdie was made the object of a fatwa because his book “The Satanic Verses” was regarded by many Iranians as a blasphemy against the prophet, I went to a conference where a panel discussion was devoted to Rushdie’s situation. A member of the audience raised his hand and, without a trace of irony, asked, “What’s the matter with those Iranians? Haven’t they ever heard of the First Amendment?”

The implication was that if they had heard of it and read it and gotten its message, they would have understood that you don’t target or attack people because of what they have written; you don’t respond to words, however harsh and wounding you take them to be, as if they were physical blows. Now, in the wake of the events in Libya, the same kind of thing is being said by American politicians and commentators. If you’re listening to the radio and tuning in to the cable news shows, you’re hearing any number of people (including Secretary of State Hillary Rodham Clinton) declare, first, that of course the video vilifying Islam is reprehensible and, second, that nevertheless nothing can justify the eruption of “senseless violence.”

“Senseless” means without reasons, and the assumption is that it can’t be a reason to set a consulate on fire that someone in the consulate’s home country made a movie saying nasty things about your religion. After all, if your religion is worthy and strong it will survive a malicious representation of it. And besides, an assault on your religion is not an assault on you; it’s not personal. This is the point made by the Florida pastor Terry Jones, who insists that the video (with which he is associated in some way not yet specified) was “not designed to attack Muslims, but to show the destructive ideology of Islam.” In other words, we’re not attacking you, just some of the ideas you hold, an assertion that makes sense if you think that your religion is just an add-on to your essential personhood, like the political party you belong to or the football team you root for.

That is the view of religion we inherited from John Locke and other “accommodationist” Protestants, Protestants who entered into a bargain with the state: allow us freedom of worship, don’t meddle in our affairs and we won’t meddle in civic matters or attempt to make public institutions reflect theological doctrines. In his Letter Concerning Toleration, Locke is eloquent when he explains how this parceling out of the world into two distinct spheres — a private sphere and a public sphere — will put an end to the violence that is likely to occur when religious imperatives stray from their proper home in the heart and the chapel (or mosque or synagogue) and insist on ordering every aspect of life. If church and state will “each of them contain itself within its own bounds, the one attending to the worldly welfare of the commonwealth, the other to the salvation of souls, it is impossible that any discord should have happened between them.”

Those who buy into this division of labor and authority will themselves be bifurcated entities. In their private lives they will live out the commands of their religion to the fullest. In their public lives — their lives as citizens — they will relax their religious convictions and display a tolerance they may not feel in their heart of hearts. We give witness to this dual identity when we declare, in fidelity to the First Amendment, “I hate and reject what you say, but I will defend to the death your right to say it.”

It hardly needs pointing out that the protesters in Libya and Egypt won’t say that — not, however, because they don’t understand the First Amendment or the firewall that should separate religion from civil life or the distinction between one’s identity as a citizen and one’s identity as a believer or the difference between words and blows, but because they reject all four and, indeed, regard them as evil. In their eyes, a religion that confines itself to the heart and chapel, and is thus exercised intermittently while the day’s business gets done, is no religion at all. True religion does not relax its hold when you leave the house of worship; it commands your allegiance at all times and in all places. And the “you” whose allegiance it commands is not divided into a public “you” and a private “you”; it is the same at home as it is when abroad in the world.

And since for them religion is not an internal, privatized matter safe from the world’s surfaces, but an overriding imperative that the world’s surfaces should reflect, a verbal or pictorial assault on their religion will not be received as an external and ephemeral annoyance, as a “mere” representation; it will be received as a wounding to the heart, as a blow, and as a blow that is properly met by blows in return. No “sticks and stones will break my bones but names will never hurt me” for them.

So the entire package of American liberalism — the distinction between speech and action, the resolve to protect speech however distasteful it may be, the insistence that religious believers soften their piety when they enter the public sphere — is one the protesters necessarily reject. When they are told that the United States government had no part in the production of the video and deplores its content, educated Libyans and Egyptians reply (reporters tell us), “Well, if they think it’s bad and against their values, why didn’t they stop it or punish those who produced it?” The standard response is that we Americans don’t suppress or penalize ideas we regard as wrong and even dangerous; in accordance with the First Amendment, we tolerate them and allow them to present themselves for possible purchase in the marketplace of ideas.

But that means that protecting the marketplace by refusing to set limits on what can enter it is the highest value we affirm, and we affirm it no matter what truths might be vilified and what falsehoods might get themselves accepted. We have decided that the potential unhappy consequences of a strong free speech regime must be tolerated because the principle is more important than preventing any harm it might permit. We should not be surprised, however, if others in the world — most others, in fact — disagree, not because they are blind and ignorant but because they worship God and truth rather than the First Amendment, which not only keeps God and truth at arm’s length but regards them with a deep suspicion.

Source: http://opinionator.blogs.nytimes.com/2012/09/17/libya-violence-and-free-speech/?hp#h[]

The Horn of Africa after Meles Zenawi

The Economist

August 25, 2012

Bye-bye big man. The lessons for Africa’s most troubled region from the career of its most able leader.

SOME countries have a habit of suffering in unison. As in the Balkans and the Caucasus, the ethnically diverse countries of the Horn of Africa often infect one another. Ethiopia, Sudan and Somalia have all spilled internal conflicts and misrule across borders. Two historic events this week may now open up a new chapter in the Horn’s history. Both could pave the way towards greater political openness and prosperity—but only if the West applies pressure in the right way.

 
The first event occurred in Somalia, which convened its first parliament in living memory (see article). Representatives from all regions and clans, often warring, met in the recently liberated capital, Mogadishu; they are now expected to choose a president in a competitive, if imperfect, vote. National elections are next on the agenda. There are plainly risks: many of Somalia’s politicians are crooks; and the Shabab, an extreme Islamist militia that controlled most of the country until recently, remains a threat. But Somalia probably has its best chance of finding an inclusive government since it descended into internecine fighting and frequent famine after the overthrow of Siad Barre in 1991.

All this was, however, overshadowed by the second event: the death of Ethiopia’s prime minister (see article). Meles Zenawi, who had been in power ever since his forces ousted the Marxist junta of Mengistu Haile Mariam in 1991, was the Horn’s dominant figure and the West’s main ally in the region. How Africa interprets his legacy will matter enormously.

There is much to praise. Mr Meles lifted millions out of abject poverty and devoted himself to finding workable development policies. During his two-decade rule, Ethiopia went from being a byword for starvation to a substantial food exporter. But Mr Meles also became increasingly dictatorial. Elections were rigged and prisons filled with political activists. The bargain he foisted on his people—food for autocracy—ultimately curbed their potential. Technology, an engine of freedom as well as growth elsewhere, is reserved for the elite. Ethiopian Airlines has just become the first non-Japanese owner of Boeing’s Dreamliner aircraft, but the rate of mobile-phone use is among the lowest in the world.

Beware the myth

Many African dictators saw in Mr Meles another feature bolstering their own positions: a proof of the need for top-down government. Look, they said, 10% GDP growth and no real elections! Western leaders embraced him too—with one arm, holding their noses with the other hand. He received $4 billion in aid a year, and mostly put it to good use.

But Ethiopia is no model. Mr Meles’s death exposes the dangers of building a state around one man, no matter how competent. He leaves a powerful machine that none but he could steer. The hope is that with no leader of his stature in the wings, power will inevitably be shared. The yes-men with whom the brainy but paranoid Mr Meles surrounded himself cannot exert control alone. The fear is that members of Ethiopia’s elite may fight for control, ethnic movements on the periphery could be emboldened by a power vacuum and Eritrea might sense an opportunity to destabilise its arch-foe.
 

Leaders in Rwanda and Angola, two other booming strongman states, should take note. Institutions matter. Western donors have lessons to learn as well. Competence in African leaders is no substitute for fairness. Involved as it is in the fiendishly difficult process of ensuring a peaceful succession in Ethiopia and choosing a president in Somalia, the West should resist the temptation to look for another Meles. Democracy is the Horn’s best hope.

Source: http://www.economist.com/node/21560880

Ethiopia's prime minister, man who tried to make dictatorship acceptable

The Economist

August 25, 2012

What will follow one of Africa’s most successful strongmen?

THE death of Meles Zenawi, Ethiopia’s prime minister, on August 20th reveals much about the country he created. Details of his ill health remained a secret until the end. A short broadcast on state television, late by a day, informed Ethiopians that their “visionary leader” of the past 21 years was gone. He died of an unspecified “sudden infection” somewhere abroad. No further information was given. In the two months since the prime minister’s last public appearance the only Ethiopian newspaper that reported his illness was pulped, its office closed, and its editor arrested. Further details of Mr Meles’s death surfaced only when an EU official confirmed that he died in a Brussels hospital.

A towering figure on Africa’s political scene, he leaves much uncertainty in his wake. Ethiopia, where power has changed hands only three times since the second world war, always by force, now faces a tricky transition period. Mr Meles’s chosen successor is a placeholder at best. Most Ethiopians, whatever they thought of their prime minister, assumed he would be around to manage the succession. Instead he disappeared as unexpectedly as he had arrived. He was a young medical student in the 1970s when he joined the fight against the Derg, the Marxist junta that then ruled Ethiopia. He went into the bush as Legesse Zenawi and emerged as “Meles”—a nom de guerre he had taken in tribute to a murdered comrade.

Who exactly was he? As leader of the Tigrayan People’s Liberation Front, an ethnic militia from the country’s north, he presented himself to his countrymen as a severe, ruthless revolutionary; yet Westerners who spoke to him in his mountain hideouts found a clever, understated man who laid out, in precise English, plans to reform a feudal state. In 1991, after the fall of the last Derg leader, Mengistu Haile Mariam, the 36-year-old Mr Meles (pictured above) took power, becoming Africa’s youngest leader. He had moral authority as a survivor of various famines. Western governments and publics, who became aware of Ethiopian hunger through the Band Aid and Live Aid charity concerts, gave freely. Mr Meles was often able to dictate terms under which donors could operate in Ethiopia and turned his country into Africa’s biggest aid recipient.

Where others wasted development aid, Ethiopia put it to work. Over the past decade GDP has grown by 10.6% a year, according to the World Bank, double the average in the rest of sub-Saharan Africa. The share of Ethiopians living in extreme poverty—those on less than 60 cents a day—has fallen from 45% when Mr Meles took power to just under 30%. Lacking large-scale natural resources, the government has boosted manufacturing and agriculture. Exports have risen sharply. A string of hydroelectric dams now under construction is expected to give the economy a further boost in the coming years.

The flipside of the Meles record is authoritarianism. Before his departure he ensured that meaningful opposition was “already dead”, says Zerihun Tesfaye, a human-rights activist. The ruling party controls all but one of the seats in parliament, after claiming 99.6% of the vote in the 2010 elections. It abandoned a brief flirtation with more open politics after a vote five years previously, when the opposition did better than expected. The regime subsequently rewired the state from the village up, dismantling independent organisations from teachers’ unions to human-rights groups and binding foreign-financed programmes with tight new rules. Opposition parties were banned and their leaders jailed or driven into exile; the press was muzzled.

Internationally, Mr Meles made friends with America, allowing it to base unarmed drones at a remote airfield. He also liked to act as a regional policeman. His troops repeatedly entered neighbouring Somalia (they are slowly handing over conquered territory to an African Union peacekeeping force). Hostilities have at times flared along the border with Eritrea. Mr Meles cowed his smaller neighbour and persuaded the world to see it as a rogue state. This in turn helped him restrain nationalists at home. In his absence, hardliners on both sides may reach for arms once again.




The nature of power in Mr Meles’s Ethiopia has remained surprisingly opaque. On the surface, the ruling Ethiopian People’s Revolutionary Democratic Front is a broad grouping encompassing all of the country’s ethnic factions. Like the liberal constitution, it is largely a sham. Real power rests with an inner circle of Mr Meles’s comrades. They all come from his home area, Tigray, which accounts for only 7% of Ethiopia’s 82m people. His acting successor is an exception. Haile Mariam Desalegn, the foreign minister, is from the south. His prominence raises hopes that the long dominance of the Habesha, the Christian highlanders of the Amhara and Tigray regions, may be diluted. But few think he has enough standing to exert real control.

Power will be wielded by Tigrayans such as Getachew Assefa, the head of the intelligence service; Abay Tsehaye, the director-general of the Ethiopian sugar corporation; and Mr Meles’s widow, Azeb Mesfin. An MP, she heads a sprawling conglomerate known as EFFORT, which began as a reconstruction fund for Tigray but now has a host of investments. It is unclear whether any of the Tigrayans will seek the leadership of the ruling party or be content to wield control from the sidelines. A struggle among this elite would be a big threat to stability.

Source: http://www.economist.com/node/21560904

Eritrea is Ruled without the Consent of the Governed

Abraham G. Ghiorgis

July 4, 2012

The article the "Consent of the Governed" pasted below is compiled from "Democracy Web." It explains the concept and its historical roots in a simple way.

This first week of July is a joyous time in America where the people proudly celebrate their glorious independence from British colonialism. On July 4, 1776, the Americans in practical terms ushered in to the world the revolutionary concept of the "consent of the governed."

For us, Eritreans, what does the consent of the governed mean?  The Eritreans took the road of the consent of the governed on three important occasions and milestones in their history. In a way, they took their destiny in their own hands. First, the Eritrean armed struggle for national independence  led by both the ELF and the EPLF, which was consummated in a de facto independent Eritrea in 1991 had an overwhelming support of the Eritrean people. This accomplishment be it  implicitly or explicitly had a consent of the Eritrean people. Indeed one of the significant reasons for its success.

Second, in 1993 the Eritrean people in an internationally supervised referendum legally voted for independence of Eritrea. Again, this is a consent of the Eritrean people.

Third, in 1997 the Eritrean people ratified a constitution.This also is a consent of the Eritrean people, at least it is a consent of the majority of the Eritrean people  who live under the oppressive yolk of the PFDJ inside Eritrea.

In my book, the ratified constitution warts and all is a foundation for the establishment of liberal democratic institutions -- executive branch of the government, legislative  branch of the government, judiciary branch of the government, independent media, independent civil associations, an army and a police force whose obligations are to the constitution and the rule of law, and etc. These institutions enshrine and protect civil liberties and create a civil society that is at peace with itself and its neighbors. This is a civil society where the rule of law reigns. (See: (1)  The Constitution of Liberty, by F. A. Hayek; and (2) The Open Society and its Enemies, by Karl R. Popper)

When it came to put all of these in practice, it sadly was not to be, since the PFDJ leaders suddenly got  cold feet. The PFDJ leaders betrayed their own people and violated the principle of the consent of the governed; they shelved the ratified constitution to collect dust and never to be seen again; they cruelly decided  to rule Eritrea through arbitrary edicts and decrees.

Still, the ratified constitution is the only document that I see can effectively unite the Eritrean people. These include those who oppose and those who support the Eritrean government, since after all is said and done, all of us belong to the Eritrean nation. The thugs who are giving us all kind of pains and sufferings are no more than the total number of cards in a single deck, still no need to be vengeful and vindictive. There are a lot valuable lessons to be learnt from the magnanimous  heart and generosity of  such saint like leaders, Nelson Mandela and Vaclav Havel, who helped their respective countries to transition to liberal democratic societies taking a cue from Abraham Lincoln's wise words of "with malice toward none; with charity for all."  It is my sincere belief that the ratified constitution  can help us to smoothly transition Eritrea into a civil society without any hiccup, where civil liberties are respected.

Anything else is back to square one. This may even result in chaos and anarchy in Eritrea. We should never assume that we are different than Somalia, Afghanistan, Iraq, Yemen, and Syria, just to mention a few tribal societies like us that are having tremendous problems transitioning towards liberal democracy and the rule of law. In the cases of Iraq and Afghanistan, the USA has been doing all kind of things to help in the transition for more than ten years, and yet all the blood and treasure went down the drain without any effective result. This by itself should be a great warning to those who mistakenly believe that the tanks of Ethiopia  could  bring a qualitative change for the better in Eritrea. (See: (1) The Future of Freedom, by Fared Zakaria ; and  (2) The Origins of Political Order, by Francis Fukuyama)

More, the Eritrean leaders do not even abide by the rules and charter of their  own organization -- the PFDJ.  The last time the PFDJ had a meeting of a general congress was in 1994. Based on its rules, the PFDJ is supposed to meet every two years, to be extended by a half year if extraordinary circumstances warrant. The next time the general congress was supposed to meet was by the latest in 1997.  Now it is 2012. The PFDJ has not met for its general congress for about eighteen years. This means the leaders do not have a legal standing to authenticate  their leadership, since the legitimacy of the congress that elected them expired some time in 1997. In addition, the rules of the PFDJ limit the term of its chairman to two terms that amount to a maximum of  five years;  yet its only chairman has illegally usurped power for about fifteen years - that is since 1997.  This is nothing but a coup d'état. By any measure, this means that the leaders of the PFDJ do not have a consent of the members of their own organization, let alone the consent of the Eritrean people, since these leaders have violated the rules and charter of the PFDJ itself. ( For a detailed explanation please see: http://eritreamereb.blogspot.com/2009/11/pfdj-is-illegal-organization.html )

The Eritrean leaders do not have a consent of the governed -- whether the consent of the Eritrean people or the consent of the PFDJ. Our struggle now is to bring a system of government in Eritrea that rules according to the consent of the governed -- the consent of the Eritrean people and also yes of the consent of the members of the PFDJ.

Abraham G. Ghiorgis.
New York

Note: the blogspot noted below has a reading list of books on the subjects of property rights, rule of law, and constitutional government. Also included are previous articles published in Eritrean websites and other relevant articles on Eritrea and Ethiopia. The site is as follows: http://eritreamereb.blogspot.com/

---

(I) The Consent of the Governed :Essential Principles

by  "Democracy Web"

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed..."

Declaration of Independence, United States of America, 1776

The most fundamental concept of democracy is the idea that government exists to secure the rights of the people and must be based on the consent of the governed. Today, the quote above from the U.S. Declaration of Independence is considered an indisputable maxim of the ideal form of government.

The essential meaning of consent of the governed can be better understood by examining countries where it is lacking. In 1989, Chinese students who had gathered in Beijing's Tiananmen Square adopted the Statue of Liberty—calling it the Goddess of Liberty—as the symbol of their demands for truth, freedom, and democracy from their government.

Millions of workers, professionals, and peasants joined the students in Beijing and in cities across China to take back a government that had long been used to deny people's freedom. Since the Communist Party seized power in 1949, anyone who opposed its dictates and ideological campaigns had been subject to arrest or worse. The party's policies caused millions of deaths through famine, execution, and violent political purges.

The Chinese people consented to none of this. Indeed, the regime's only authority to govern was the Communist principle of "democratic centralism," according to which the decisions of the party leadership could not be questioned. In 1989, Deng Xiao Ping, the top Communist leader, ordered the use of force to put down the demonstrations in Tiananmen Square and elsewhere in China. The world saw students stand before tanks, but ultimately they were helpless to prevent the mass killings and arrests that ensued. Nearly 20 years later, the Communist Party remains the supreme authority. The students who sought democracy were imprisoned, expelled from school, forced into exile, pressured to recant their views, or denied their livelihood or even housing. Workers were treated even more harshly, and today China's booming export-based economy is built on the severe exploitation of labor. For now, repression has effectively prevented any reemergence of the popular demand for democracy. This is the result of a system based on the opposite of the consent of the governed (see also Country Study of People's Republic of China under "Freedom of Expression".)

(A) Before Consent of the Governed

Until the original 13 American states asserted the principle of consent of the governed as self-evident, it had been applied only rarely around the world (see below). For much of recorded history, people lived under different types of autocracy, ruled by a single leader exercising unlimited power. Sometimes, the ruler was the best warrior, able to seize power over a group or nation (for example, Genghis Khan in 13th-century Asia). Such leaders often founded hereditary monarchies, the most common form of autocracy. In most cases, the monarch was all-powerful, claiming his or her position by "divine right" (as in Europe) or the "mandate of heaven" (as in China). The ruler was sovereign, the supreme authority of a state. The people were not citizens but subjects. They never consented to be governed, but owed their total obedience and loyalty to the ruler, often on pain of death. In some countries, kings or emperors agreed to limit their powers in response to the demands of landowners and noblemen, establishing a system of consent by the aristocracy. England's Magna Carta (Great Charter) of 1215 is among the most famous agreements limiting the powers of a king. It guaranteed that the king and his successors would not violate the acknowledged rights and privileges of the aristocracy, the clergy, and semiautonomous towns (see "Constitutional Government").

But even when its powers were limited, monarchy meant arbitrary and unrepresentative rule for most subjects, locking them into a life of servitude. The idea that the people were sovereign was—and in many places remains—revolutionary.

(B) Consent of the Governed: A Positive Definition

The United States of America was the first modern state formed around the principle of consent of the governed. The term implies that the people of a country or territory are sovereign and consent, in a direct referendum or through elected representatives, to the establishment of their own government. In most modern cases, the form of the state is a republic, or rule by voting citizens within an agreed-upon constitutional and legal framework. But some monarchies also operate with the consent of the governed, as in Great Britain, where over time the monarch has given up most political and administrative functions to elected officials.

The original consent of the governed—for a new constitution or the formation of a new state—is achieved either through direct democracy, such as a referendum or plebiscite, or through elected representative institutions, such as an existing legislature or a special constitutional assembly. In some cases, the establishment of a new governmental system requires a "supermajority," from three-fifths to three-quarters, to convey overwhelming popular assent, but often a simple majority suffices. (The U.S. Constitution required the approval of ratifying conventions in at least nine of the 13 states; an amendment must be passed by two-thirds of both houses of Congress as well as the elected legislatures of three-quarters of the states.) What remains fixed is the principle that the people are sovereign and must provide their fundamental consent to be governed.

The most common form of democracy is the parliamentary system, in which the executive branch is controlled by the party or coalition of parties that wins a majority of seats in parliament. Unlike in the American presidential system, there are few constitutional checks and balances between the executive and legislative branches, and the system relies heavily on the oversight of the opposition party or parties in parliament (see "Constitutional Limits," and "Multiparty System").

Once the form of democratic government is established, elections are the main vehicle for renewing the consent of the governed. Each election is an opportunity for the people to change their leaders. When a particular government loses the people's confidence, they have the right to replace it. If the system requires modification, the legislature may pass laws to reform it within the bounds of the constitution; if laws are insufficient, the people and their representatives can choose to modify or replace the constitution itself.

(C) Consent of the Governed: A Negative Definition

As noted above, in defining consent of the governed, it is helpful to examine cases where it is absent. Modern authoritarian regimes offer clear examples. These take various forms, including dictatorship (Zimbabwe), theocracy (Islamic Republic of Iran), military rule (Burma), and apartheid (as occurred in South Africa). But all forms of authoritarian government deny people freedom, take away property, exercise power arbitrarily, and act ruthlessly to maintain themselves. A distinct category of modern authoritarian rule is totalitarianism, which is based on violent revolution, a comprehensive ideology (such as fascism or communism), and a disciplined party apparatus. These regimes are distinguished by their system of social control over the whole population. Examples include Nazi Germany, the Soviet Union, North Korea, and the People's Republic of China under Mao Zedong.

Modern authoritarians claim power by citing the need to safeguard the integrity of the state against supposed external threats, political stability against an unruly society, and economic equality against the upper classes. What they have actually achieved is oppression, famine, catastrophic war, genocide, and the general lowering of living standards for the population. As the American philosopher Sidney Hook once observed,
How can there be genuine security so long as arbitrary power, whether it be of an employer or a group, or especially of the state as employer, is not subject to the restraints of a freely operating democratic process?

Although most seize control through violent revolution or coup d'etat, modern authoritarian rulers claim to have the consent of the governed. But they rarely allow free and fair elections or referendums to test their claims, and when they do the people generally vote against them (as in Chile in 1988, Poland in 1989, and Serbia in 2000). There are some cases, such as Nazi Germany, in which a modern authoritarian regime can be said on some level to have come to power through elections. But in fact the Nazi Party was a parliamentary minority that seized total power through intimidation and thuggery in what amounted to a coup d'etat (see also Country Study of the Federal Republic of Germany).

(D) The Right to Rebellion

Implied in the principle of consent is the right to withdraw consent—to overthrow a regime that abuses the people through tyrannical, arbitrary, or unrepresentative rule. This was the right that the British philosopher John Locke claimed was intrinsic to a system of natural law (see below), and that the 13 American states invoked against King George III in 1776.

King George III of England, 1771, five years before the start of the American Revolution
Two centuries later, the people of Eastern Europe rose up to claim the same right against an oppressive Communist system. But Locke's principle is not a general right of rebellion or revolution; he did not advocate anarchy. The cause of rebellion—or the withdrawal of consent—must amount to tyranny, and the system that the people rebel against must first violate their natural rights. Violent rebellion has come to be seen only as a last resort. In most modern cases, from anticolonial movements to anti-Communist movements, peaceful protest has been a more successful form of "rebellion" for the purpose of establishing a democracy based on consent of the governed.

What happens when a minority asserts the right to withdraw its consent to be governed? This has occurred in a number of places where minorities desire independence from dominant or oppressive majorities. In general, the world has recognized the right of oppressed peoples to form their own self-governing regions or independent states, as in Kosovo and East Timor. In Sweden, Italy, and other countries, minorities have gained autonomy without violence. But for some regions seeking independence or autonomy, such as Chechnya in Russia and Darfur in Sudan, the world has been less supportive and has failed to prevent the majority government from committing mass killings or genocide. Despite numerous international treaties and documents defining nationality and minority rights, there is little consistency in this area.

(II) The Consent of the Governed: History

(A) Athenian Democracy and the Roman Republic

The first significant historical examples of rule by consent of the governed were the city-state of Athens in the fifth century BC and the Roman Republic from the fifth to first centuries BC. Each was the most successful economic and military power of its time and region.

Athens is sometimes considered the first example of direct democracy. All citizens would assemble regularly or as needed to decide various questions facing the polis, or city-state. The Athenian Assembly elected certain categories of public servants, and many other temporary officeholders were chosen by lot from among those who volunteered, but all major decisions were made by the citizenry as a whole. The voting body of citizens, it must be noted, included only adult males of Athenian descent, leaving out resident aliens (metics), women, and slaves.

Unlike Athens, Rome was governed through layers of representative institutions and officials. There were a number of assemblies organized by class and wealth, the most important of which were the Senate and the Council of the Plebs. Senators belonged to the elite landowning class, known as patricians, while the plebeians made up the rest of the citizenry, including landowners, merchants, and farmers. At first, only patricians could hold public office, but the plebeians gradually sought more power within the state, choosing officials known as tribunes to protect their rights. In the first century BC, driven in part by its class struggles, the Roman Republic succumbed to rule by a series of generals, one of whom was Julius Caesar. His heir, Octavian, later known as Augustus, became the first of the Roman emperors, founding a dynasty and turning the state into an autocracy.

Athens and republican Rome, while not democratic in today's sense and largely dependent on slavery for labor, remain models for direct and representative democracy. Their influence on our political thinking is evident in our language. As Professor Bernard Crick of Oxford University notes, "Almost the whole vocabulary of politics, ancient and modern, is Greek and Roman: autocracy, tyranny, despotism, politics and polity, republic, senate, city, citizen, representative."

(B) The British Experience

Another important precedent for consensual government is found in the English civil wars (1642–60). Centuries earlier, the Magna Carta had forced the king of England to recognize the rights of noblemen, the clergy, and townsmen. This led to the eventual creation of Parliament, consisting of the House of Lords and House of Commons, and bound future monarchs to observe established laws and customs. By the 17th century, Parliament represented nearly all landowners, a large class of people. When Charles I defied Parliament by attempting to impose uniform (Anglican) religious practices and raise taxes without consent, it formed its own army, defeated his forces, and eventually executed him. In 1649, the House of Commons declared England "a Commonwealth and Free State" and sought to govern without a king. The monarchy was restored in 1660, but the Commonwealth was significant as a historical example of republican rule, as an influence on the subsequent adoption of the English Bill of Rights in 1689, and as part of the religious strife that drove many English dissenters to immigrate to America.

(C) John Locke and the Origins of the American Revolution

The consent of the governed was championed in modern political thought by the British philosopher John Locke (1632–1704), whose ideas heavily influenced the framers of the U.S. Constitution. In his Two Treatises of Government and other works, Locke used the philosophy of empiricism—the view that knowledge is based on sensory experience—to thoroughly denounce the arbitrary and divinely justified rule of the monarch, and to establish a general theory of rights that exist in "a state of nature"—a hypothetical condition in which people live without government. Locke's arguments were in direct contradiction to those of another natural law philosopher,

Thomas Hobbes, who in his book Leviathan theorized that a state of nature meant a "nasty, brutish, and short" existence. Hobbes argued that in exchange for security, individuals give away their rights to an all-powerful ruler. Locke asserted that the state of nature was fundamentally different: "The state of nature has a law of nature to govern it which obliges everyone... No one ought to harm another in his life, health, liberty, or possessions."

In the Second Treatise of Government, Locke explained the logic of a government based on the consent of the governed. While most recognize the moral obligation not to do harm, he said, government is needed to protect the people's peace and prosperity against the inevitable few who would violate the natural law. Since property is disputable, government is also necessary to resolve disagreements between owners. Government is legitimate only through the consent of the governed, and only as long as it satisfies these fundamental needs of the community. A government that violates the trust of the people loses its legitimacy and should be overthrown.

Locke was, in part, justifying England's Glorious Revolution of 1688, which replaced King James II and shifted greater power to Parliament. A century later, Locke's ideas played a central part in the American Revolution. (Thomas Jefferson called him one of history's greatest men.) The Declaration of Independence is itself a remarkably succinct restatement of the people's right to rebel against an unjust ruler and establish popular government. As such, it has become the world's touchstone of democracy.

(D) Jean-Jacques Rousseau and the French Revolution

The French Revolution in 1789 drew on philosophical influences similar to those behind the successful American Revolution. In many ways, though, France's Declaration of the Rights of Man and Citizen, adopted by the National Assembly, was more sweeping and radical in its assertion of human rights, equality, and the definition of a just society. In this regard, it reflected the greater influence on the French Revolution of the philosopher Jean-Jacques Rousseau. In his view, a good government should serve not just the interests of a collection of individuals (Locke) or the state's interests (Hobbes), but the interests of the people as a whole. It should represent the common or "general will," which was based on reason. His views became the basis for many communitarian philosophies and also affected the development of social democracy in Europe.

The idea of the "general will," however, was often abused. Rousseau meant the idea to reflect a clear, higher community interest as opposed to an individual one (for a modern example, the protection of a forest against clear-cutting by a landowner). But his writings are open to interpretation. When the French Revolution descended into the so-called Reign of Terror under the radical Jacobin faction (1793–94), the leader Maximilien Robespierre used the "general will" to justify imposing a dictatorship that would create a "republic of virtue" and rid France of corruption and moral decay. Robespierre was overthrown and executed for his extremism, and republican rule eventually gave way to Napoleon Bonaparte, a general who declared himself emperor. But the Revolution's original ideal of "liberté, égalité, fraternité" has continued to inspire a tradition of republicanism and freedom, both in France and around the world.

(E) Consent of the Governed: The 20th Century and Today

Consent of the governed existed in a minority of states until the mid–20th century. At the end of World War II, democracy was restored or introduced in Western Europe and Japan, but the repressive Soviet system was installed in Eastern Europe. Even in the 1950s and 1960s, as countries in Asia and Africa were gaining independence from European empires, many colonial regimes were simply replaced with authoritarian rule. At the same time, military dictatorships seized control in a number of Latin American countries. Since 1975, however, there has been a steady progress toward democracy and rule by citizens. Authoritarian regimes and military dictatorships fell, and communism collapsed throughout the Soviet bloc. In most cases, these systems gave way to electoral democracy and constitutional government. Major exceptions remain, but today electoral democracy is practiced in 123 out of 193 countries, according to the Freedom in the World 2007 survey.

Source:

http://www.democracyweb.org/consent/principles.php
http://www.democracyweb.org/consent/history.php

History and Essential Principles of Rule of Law

Abraham G.Ghiorgis

The "History and Essential Principles of Rule of Law" pasted below is a compilation of two pieces -- on the essential principles of rule of law and its history -- prepared by "Democracy Web: Comparative Studies in Freedom." For ease of reading, I numerated the subtitles. It helps all of us to consult the experts, and to absorb the theoretical principles free from our biases and prejudices of the Eritrean national liberation struggle.

Eritrea has been an independent nation now for over two decades. Yet, it is a nation that has not yet implemented its own ratified constitution. It is a nation that is ruled by an authoritarian regime through arbitrary edicts and rules. Human rights, birth rights and all civil liberties of Eritreans irrespective of where they live ( inside Eritrea or abroad) are violated left and right.

The Eritrean struggle like all others in the world has always been a struggle to establish liberty and enshrine guaranteed civil liberties for all Eritreans. And only the rule of law guarantees and protects civil liberties. Not elections and multi-party contests accomplish that, though these are desirable items. If these items as stand alone by themselves were so good without being coupled with the rule of law, then there would have been no human rights violations in many African nations such as for example: Egypt, Kenya, Nigeria and Ethiopia - despite the fact that these nations have working constitutions, parliaments, relatively free press, multiparty contests, relatively free judiciary and etc. (I do not believe Eritrea is even in the same league as these nations, since Eritrea is a lawless state.) As a rule of thumb, a nation that abides by the Universal Declaration of Human Rights respects the rule of law.

The Eritrean leaders do not want their power to be constrained by the ratified constitution - a document that has a superb stand on civil liberties and human rights. The Eritrean leaders betrayed the Eritrean people. The Eritrean people innocently bestowed a complete trust on mere mortals and sinners like all of us. They naively assumed the Eritrean leaders would institutionalize freedom and liberty. They assumed that Lord Acton's dictum "power corrupts and absolute power corrupts absolutely" applies to other people and not to Eritrean leaders.

Now through experience of hardship and abuse, the Eritrean people realize that the Eritrean leaders have no concept of the rule of law. This is immaterial whether this is through malice or ignorance. The real impact is that the PFDJ has made Eritrea a failed nation in the making.The PFDJ substantiates its authoritarian rule in Eritrea using fancy and ear pleasing terms of "equality" and "justice." Equality and justice are meaningless terms and unachievable if there are no rule of law and democracy in a nation. In particular, "the rule of law is a bulwark against tyranny." The Eritrean people have already figured out the PFDJ -- it cannot fool any Eritrean even those who are associated with its organization. This is the easy part.

The hard part is that we have some in the opposition that are as clueless as the PFDJ when it comes to the concept of the rule of law. Just visit some of the famous Eritrean websites and you will start scratching your heads. To lack a knowledge on a certain subject is not a sin. However, not learning from others and not studying from books and not doing once homework diligently is a blunder, this applies in particular to those who present themselves to us as opinion makers and shakers in the Eritrea liberal democratic opposition. Their tremendous contributions towards the struggle for liberty in Eritrea is laudable, but that should not shelter them from constructive criticisms when they are obviously in the wrong. No one should arrogate to oneself to have the last word on every subject and I might add on subjects that sometimes appear to be completely foreign to one. At the minimum one should endow oneself with a small dose of humility. Eritrea is a small nation. We already have an autocrat in the name of Isaias. One Isaias is too many for Eritrea. The last thing we need in the internet is another Isaias who polices our thoughts.

In the final analysis, our fight against the authoritarian regime in Eritrea is a fight for constructive and positive ideas. It is a peaceful struggle to transform our society from a society of violence -- that at first was imposed on us in order to liberate Eritrea from colonizers but once Eritrea was liberated it should not continue as if we were still in the armed struggle -- into a society of peace and civil liberties protected by the rule of law.


Abraham G. Ghiorgis

New York

Note: the blogspot noted below has a reading list of books on the subjects of property rights, rule of law, and constitutional government. Also included are previous articles published in Eritrean websites and other relevant articles on Eritrea and Ethiopia. The site is as follows:

http://eritreamereb.blogspot.com/

---------------------------------------------------------------------------------

History and Essential Principles of Rule of Law

By "Democracy Web"

(I) Rule of Law: Essential Principles $$$

"...the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."

Thomas Paine, Common Sense, 1776

"Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority."

Basic Law of the Federal Republic of Germany, Article 1

"Government in Saudi Arabia derives power from the Holy Koran and the Prophet's tradition."

The Basic Law of the Kingdom of Saudi Arabia, Article 7


(I) A. The Ultimate Breakdown

The Crimean Tatars, a small Muslim group that had settled on the Crimean peninsula in the 14th century, had loyally joined in the Soviet Union's battle against Nazi Germany. Yet, during the course of World War II, Soviet leader Joseph Stalin questioned the Tatars' loyalty as a community because some Tatars had reportedly served in Nazi battalions. Stalin ordered the summary deportation of the entire Tatar population to Central Asia.

On May 18, 1944, agents of the Soviet secret police (the NKVD) began rounding up Tatars and deporting them by train to Uzbekistan and Kazakhstan. Within two days, approximately 200,000 Tatars had been exiled, and approximately a third of those exiled later died from hunger, exposure, and disease. Stalin's regime undertook similar actions against other small ethnic groups in the Caucasus in the attempt to rid the region of all minority communities.

The ethnic cleansings that occurred under Stalin were illustrations of his arbitrary and unchecked rule, which cost tens of millions of people their lives. Such abuses serve as examples of the ultimate breakdown in the rule of law.

(I) B. A Necessary Accompaniment for Democracy

In democracies, the use of arbitrary power is considered anathema to the rule of law. Fundamentally, constitutional limits on power, a key feature of democracy, requires adherence to the rule of law. Indeed, the rule of law could be defined as the subjugation of state power to a country's constitution and laws, established or adopted through popular consent. This is the meaning of the commonly cited phrase "a government of laws, not men," made famous by John Adams, the second president of the United States. Under such a system, law should be supreme to the capricious authority of any individual. The rule of law is the supreme check on political power used against people's rights. Without the regulation of state power by a system of laws, procedures, and courts, democracy could not survive.

Although the rule of law protects the majority from arbitrary power and tyranny, it should also protect the minority both from arbitrary power and the "tyranny of the majority" (see also "Majority Rule/Minority Rights"). Without the rule of law, there is likely to be either a dictatorship or mob rule. Some revolutionary thinkers have extolled mob rule as the highest form of political and social justice. In reality, however, mob rule has meant violence and political chaos, which are the very same conditions that often give rise to dictatorship, the exercise of arbitrary power, and the denial of individual rights.

(I) C. The Rule of Law: Contrasting Principles

Much of what Americans consider to be the rule of law is derived from Anglo-Saxon legal traditions (see History section below). But there are many variations in how different countries organize legal and political institutions and apply the rule of law. These differences can often be confusing when talking about basic principles. For example, the American and British principles of "innocent until proven guilty," the right not to incriminate oneself, and the right to be tried by a jury of one's peers are so deeply ingrained in the fabric of the law and society that they might be considered absolute principles. Yet the rest of Europe, most of which follows a Roman law tradition, does not operate by any of these tenets. Principles of the French system, such as the assumption of guilt or the legality of indefinite periods of incarceration, violate the American and British standards of justice. Furthermore, the many violations by modern democracies of their own rule of law principles justify the questioning of its absolute validity.

(I) D. The Rule of Law: Common Definitions

Still, the adoption and practice of basic principles of the rule of law are clear barometers for any democracy. Apparent contradictions in principle or practice do not negate the rule of law's overall importance. The awful consequences of the breakdown of the rule of law in dictatorships, as recounted above, make its importance self-evident. In democratic societies, deviations from the principles of the rule of law, such as slavery and systematic discrimination in the United States, or the unequal treatment of women historically, serve as powerful arguments for the fulfillment of those principles.

Thus, while there is no set definition of the rule of law encompassing all its practices, there is a basic realm of common principles. The scholar Rachel Kleinfeld Belton identifies five:

• a government bound by and ruled by law;

• equality before the law;

• the establishment of law and order;

• the efficient and predictable application of justice; and

• the protection of human rights.

One might add that the Western concept of the rule of law should also include the separation of religion and state as a basic constitutional principle, since the influence of both state and religious institutions in the application of the law could lead to arbitrary interpretations. Even in Western countries with a strong religious presence, the policies of organized religion are separate from those of the government.

(I) E. Institutions of the Rule of Law

Belton also identifies a second definition for the rule of law, namely one based on the institutions or instruments by which the ends of rule of law are achieved. These include:

• the existence of comprehensive laws or a constitution based on popular consent;

• a functioning judicial system;

• established law enforcement agencies with well-trained officers.

Absent any of these features, the rule of law may arguably break down. A constitution without legitimacy will not be respected by the people, and thus its principles cannot be upheld. If there is no constitutional check on the misuse of power, a corrupt judiciary or police force can manipulate the laws to their advantage, incompetent lawyers cannot adequately represent their clients, and so on. The Watergate scandal of the early 1970s—when former president Richard Nixon tried to cover up his administration's involvement in illegal activities aimed to ensure his reelection—illustrates how the institutions of the rule of law act together to protect its principles. The media and public, exercising their right to free speech, uncovered and publicized the Republican administration's illegal activities. Through the U.S. Supreme Court's decision United States v. Nixon (1974), which stated that executive privilege was not absolute and that Nixon was required to release his tapes, the Supreme Court enforced Congress's authority to investigate "high crimes and misdemeanors." The House of Representatives, in turn, impeached the president for breaking the law and violating his oath of office. These actions forced Nixon to resign, which was the first time a president had done so in U.S. history. In this way, a president who sought to act outside of the law to aggrandize political power was prevented from doing so.

Belton notes another factor necessary to achieve the rule of law, namely the will of society to enforce basic principles of equality, fairness, and justice. During the height of the British Empire in the late 19th and early 20th centuries, rule of law principles did not apply in its colonies, where democratic rights were trampled. In the United States, the period of slavery (which was ended countrywide by the 13th Amendment to the Constitution in 1865) is perhaps the most flagrant example within a democratic society of the breakdown of the rule of law. Even after the emancipation of slaves, the adoption of Jim Crow laws throughout the South and U.S. Supreme Court rulings turned the 14th Amendment, which guarantees equal treatment under the law, on its head. An example of a Supreme Court ruling that upheld segregation is Plessy v. Ferguson (1896), which supported the legality of segregation, provided that facilities were separate but equal. Today, it is almost incomprehensible that the American system of democracy supported such terrible contradictions, which condoned the majority's abuse of a minority. Yet it was through the rule of law that African Americans were able to slowly win back their rights. In 1946, the U.S. Supreme Court asserted that segregation during interstate travel was unconstitutional, giving rise to the Freedom Rides, where activists tested this assertion through bus rides throughout the South. The Supreme Court later overturned the legality of "separate but equal" conditions with the decision Brown v. Board of Education (1954), which ruled that racial segregation in public schools was unconstitutional. These two decisions helped to convince American society to end racial segregation and the systematic mistreatment of African Americans through the enactment of sweeping civil rights legislation beginning in the 1960s. The will of society, in this instance, was essential in the establishment of basic rule of law standards.

(I) F. International Rule of Law

Following World War II, the Nuremberg and Tokyo war crimes trials and the adoption of the 1948 United Nations Universal Declaration of Human Rights and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide established international principles of the rule of law, most importantly that no government is above the universal laws of nations, and that the international community may act to prevent and respond to acts of genocide. But no international judicial institutions were established to ensure that states would adhere to these international principles. Consequently, ethnic cleansing and genocide have continued to take place, eliciting either no action or a delayed reaction from members of the international community to try to prevent further killing (most recently in the Balkans, Rwanda, and now the Darfur region of Sudan, among others). However, starting in the mid-1990s, the United Nations set up courts in the former Yugoslavia and in Rwanda to investigate and prosecute war crimes and crimes against humanity with the aim of preventing similar atrocities from occurring elsewhere. In 1988, the International Criminal Court (ICC) was established to prosecute genocide, war crimes, and crimes against humanity, and applies to abuses occurring after July 1, 2002, in situations where national judicial systems do not or cannot assume the case. The innovation of the ICC is that it has the power to prosecute individuals who commit abuses in a signatory state or who are citizens of a signatory state; the United States, however, has not participated in the ICC. More recently, mixed or hybrid tribunals, established through the joint efforts of the United Nations and national governments, have been established in East Timor, Kosovo, and Sierra Leone. Finally, in some countries, such as Iraq, the prosecution of crimes against humanity has been domestic. It is open for debate whether domestic or even mixed criminal tribunals are successful in establishing consistent principles of an international rule of law.

(II) Rule of Law: History $$$

(II) A. The Code of Hammurabi

The earliest written legal code for a government was the Code of Hammurabi for Babylon, dating from 1750 BC. Hammurabi, who needed to unite his disparate realm, decided to establish common rules of conduct, commerce, and devotion to the king under a system overseen by judges. In comparison with contemporary standards, much of the code is severe: many crimes were punishable with death or corporal punishment. Nevertheless, it was remarkable for introducing the ideas that government should be subject to the law; that laws should be based on public rules, not secret or divine ones; and that law should be efficiently and fairly applied by judges, principles that Belton mentions above.

(II) B. The Modern Understanding of Athens

In the area of the rule of law, ancient Athens is best known for its prosecution and execution of the great philosopher Socrates in 399 BC, on charges of treason and corrupting Athens' youth by encouraging philosophical discussion. But this case, usually presented as an example of unjust mob rule, masks the contributions of ancient Athens in the development of rule of law principles. In the Athenian system, magistrates and jurors were drawn by lottery from the Assembly, composed of citizens, since it was believed that judgment should be by one's peers. All citizens had the right to bring both private and public matters before the courts. In commercial law, the principle of binding and enforceable contracts among equal citizens was introduced. This meant that law, not brute force, determined commercial exchanges, helping to make Athens the region's center for trade. Despite its large juries (up to 5,000), a common subject of mockery by critics, the Athenian system appears to have worked efficiently, and citizens safeguarded it jealously. Juries composed of peers and equal access by citizen to courts are just some of the characteristics of Athenian law included in most contemporary justice systems.

(II) C. Roman Law

Most scholars, however, cite the Roman system as the most important tradition influencing Western law. Roman law was less egalitarian in origin, since its first purpose was to protect aristocratic landholders. Furthermore, the spread of Roman law occurred through empire and military dominance. Yet the Roman tradition implanted several basic principles of the rule of law, including the need for public knowledge of civil law and judicial procedures, the evolution of law according to precedent and circumstances, and the idea that natural law (universal rights of man) can provide the basis for positive (man-made) law. The Roman tradition was maintained under the Byzantine Empire and over time was incorporated into much of European law and practice throughout the Holy Roman Empire.

(II) D. The Magna Carta

For many theorists, the most important idea in the rule of law as a concept of governance was the signing of the Magna Carta in England in 1215. Signed by King John, this document limited—for the first time—the power of the king in relation to his subjects by forbidding the raising of taxes without the approval of a partially elected parliament (see also "Constitutional Limits"). It also established other equally important limits:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we (the King) proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land [emphasis added].

(II) E1. The Anglo-Saxon Tradition

Abuses of power by the Stuart monarchy in England during the early 17th century led to the adoption of the Petition of Grievances in 1610, which established the right of citizens to petition government to seek redress for abuses of power. Charles I's attempt to reassert the monarchy's absolute power by raising an army without parliamentary approval led to the adoption of the Petition of Right in 1628, which more firmly grounded in law the principle of no taxation without representation.

The most important aspect of the Anglo-Saxon legal tradition, though, was the adoption of the Habeas Corpus Act in 1679. Charles II, undeterred by the bloody struggle of the English Civil War (1642–51) between Parliamentarians and Loyalists and the brief period of the Commonwealth under Oliver Cromwell and his son (1653–59), quickly abused his powers upon being restored to the monarchy. He imprisoned his opponents without cause and attempted to reestablish Catholicism as the state religion against the clear will of Parliament and the people. Parliament reasserted its rights through the Habeas Corpus Act. The principle of habeas corpus, also known as "the Great Writ," holds that those who have been incarcerated must have their cases heard in court to determine the validity of the arrest or conviction (in Latin, habeas corpus literally means "to have the body"). While the principle had been in existence for over two centuries, the Habeas Corpus Act formalized its use and asserted that the government has neither the right to imprison without cause nor the right to act above the law in relation to its citizens. The law ordered "all sheriffs, gaolers and other officers" in custody of "the King's subjects" to "yield authority" to all writs of the court, meaning that no government official could ignore the law. Today, the principle of habeas corpus provides protection against the abuse of government power through arbitrary or politically motivated imprisonments.

The Glorious Revolution of 1688 replaced the Catholic James II with his daughter, Mary, a Protestant, and her husband (and also her cousin), William of Orange, on the condition that they accepted the English Bill of Rights, adopted in 1689. This bill reinforced the Habeas Corpus Act, the Petition of Right, and the Petition of Grievances, and established other rule of law standards as constitutional foundations, such as the right to trial by jury, the prohibition against cruel and unusual punishment, and limitations on the powers of the monarchy. The Act of Settlement of 1701 later established Parliament's power to determine succession to the monarchy.

(II) E. The Rule of Law as Bulwark Against Government Tyranny

The English Bill of Rights recognized the importance of positive rights, which were being asserted by Enlightenment thinkers. Positive rights refer to a moral obligation that is owed to someone, as opposed to negative rights, which require only the absence of interference. According to many Enlightenment philosophers, these positive rights were natural rights, meaning that all humans were entitled to them and that the state could not violate them. Such rights were an indispensable accompaniment to representative government and were adopted by supporters of both the American and French Revolutions. The American version of the Bill of Rights expanded constitutional protections to include the right to a fair and speedy trial, the right not to incriminate oneself, the right to confront one's accuser in court, and the right to protection against unwarranted search and seizures. In the U.S. Constitution, these standards of rule of law — encompassed within the phrase "due process"— are considered the main bulwark against any threat of tyranny by the government.

(II) F. The Separation of Powers

The question arises, then, as to who will enforce the standards of the rule of law. In modern democracies, the rule of law relies on the presence of a judiciary or court system that can act independently of executive and legislative powers, ruling on the basis of established law and not on the basis of arbitrary or politically motivated considerations. Separation of powers is thus essential to the rule of law. Baron de Montesquieu, whose The Spirit of Laws (1748) was a guide for many of the framers of the U.S. Constitution, argued:

Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

The independence of the federal judiciary in the United States is established through the "advise and consent" powers of the Senate, such as the need for Senate approval of the president's nominees for federal judges, and the Senate's sole authority to impeach judges from their lifetime appointments, whether due to incompetence or malfeasance. The independence of the judiciary was further strengthened in Marbury v. Madison (1803), decided by Chief Justice John Marshall, which asserted the Supreme Court's power of judicial review, meaning that the Court became the final arbiter of whether laws and the government's actions are constitutional.

(II) G. The Expansion of Rule of Law

The incorporation of the rule of law and the separation of powers in British and U.S. law had a great influence over the next two centuries, first as a result of the expansion of the British Empire, and second as a result of the growing influence of the United States as a world power. Rule of law principles came to symbolize the expansion of rights and liberties around the globe. More significant, natural law arguments in favor of due process, human rights, and self-governance became the instruments for many independence and democracy movements worldwide. Mahatma Gandhi is one of the best-known and most successful of the advocates for combining claims of legal rights with civic resistance against unjust laws. Gandhi succeeded in forcing the British government to abide by its own principles. This strategy has attracted many followers. In the United States, followers of Gandhi, such as Bayard Rustin and Martin Luther King Jr., used the instruments of protest and civic resistance to empower African Americans to act against Jim Crow and legalized discrimination.

(II) H. The Contraction of Rule of Law

As noted above, tyranny stands opposite to the rule of law—it may even reflect its total breakdown. In dictatorships, the institutions of the rule of law frequently become instruments of oppression. Indeed, recognizing the power of law as a foundation for governance, dictatorships develop their own perverted claims to the rule of law. Nazi Germany and other Fascist states, for instance, imposed legal systems based on the supreme power of the leader and the superiority of one race over all others. Communist regimes superimposed the class struggle over "bourgeois" concepts of human rights in all laws, and then established the absolute authority of Communist parties to decide on all aspects of law and life. Many intellectuals were seduced by the idea of a higher form of egalitarianism based on "national" or "socialist" law. In fact, there was no law, only justification for the most brutal actions—mass murder, forced labor, ethnic cleansing, and genocide.

(II) I. Universal Rule of Law

The defeat of fascism and Nazi Germany propelled the establishment of universal standards of human rights and the rule of law through agreements such as the Universal Declaration of Human Rights (1948), the Convention Against Genocide (1948), the Covenant on Civil and Political Rights (1966), and the Convention Against Torture (1984). The collapse of communism and the Soviet Union in 1989–1991, the end of apartheid in South Africa in the early 1990s, and the collapse of Fascist regimes in Latin America in the 1980s and 1990s further reinforced the rule of law as a universal principle not only of justice but also of governance.

(II) J. Islamic Law

There is, however, an Islamic tradition of law that competes with the Western definition of the rule of law based on individual rights. The Islamic system of justice (or Sharia), involves the application of sacred principles as related to the Prophet Muhammad by Allah (the Arabic word for God). In many Muslim countries, Islamic or Sharia courts are complementary to state courts in civil and religious matters.

Such courts are presided over by clerics who interpret the Koran for its application in specific instances of claimed injustice or appeals for mediation. Sometimes, such religious courts follow established procedures and act as a positive mediating influence in society. Sometimes, however, Islamic or Sharia courts act according to procedures based on a particular interpretation of Islam or national custom. This could lead to abuses for political purposes or to the promotion of a sectarian understanding of the Koran (Wahhabism in Saudi Arabia, for example). In such cases, religious courts operate outside of the concepts of the rule of law discussed above that stress equal application of the law, due process, uniformity of expectations, and so on. Thus, in all Muslim countries where democracy has been established (as well as some other predominantly Muslim countries), state courts supersede religious courts.

In a few countries, such as Iran, Afghanistan under the Taliban, and Saudi Arabia, Islamic justice is a tool for imposing a harsh dictatorship based on restrictive interpretations of Islamic law and texts. In recent decades, radical Islamism has also spread to other countries and is used as a tool for seeking power or imposing the will of the majority over the minority (see, for example, the Country Studies of Sudan or Nigeria). More significant, fanatical movements such as al-Qaeda have arisen seeking to achieve a radical vision of Islam in order to establish a universal theocracy. In this vision, the use of violence against innocent Muslims and non-Muslims alike is justified to fulfill radical Islamist goals. Such views are antithetical to any ideas of the rule of law and contrary to the understanding of Islam for most Muslims today.

Source:
http://www.democracyweb.org/rule/principles.php