J. Todd Spurgeon: What exactly is the meaning of the ‘rule of law’ anyway?

Lawyers are known for using big, fancy words. In fact, that language has garnered its own descriptor over the generations: “legalese.”

When I Googled the definition of “legalese,” the first result that came up was probably the most fitting: “The formal and technical language of legal documents that is often hard to understand.”

Some of us over the years have made efforts to simplify our legal writing, and courts have also made strides in their efforts to make their opinions more understandable. The goal is to make our system of justice less imposing, more comprehensible and maybe even more accessible to the general public.

Of late, the term “rule of law” has been bantered about almost ad nauseum in all kinds of circles, from political discourse to the nightly news to various bar association communications.

The term itself does not consist of the typical formal or technical language that characterizes legalese. However, I have been at this law thing for a bit and have been active in local, state, and national bar associations, but I have found myself genuinely puzzled lately about what the term really means.

Perhaps the meaning of the term has become muddied from overuse. If I, as a practicing attorney, am having difficulty grasping the import of the term, I can only imagine what the general public might think when we use the term in defense of judges against unfair attacks, or when advocating for important rights such as due process or the protection of checks and balances.

So, I set out on a (brief) quest to rediscover the meaning of the “rule of law” in its simplest form.

My first stop was that trusted legal authority, Google. The first definition that popped up read: “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.”

That is a lot of adjectives: “arbitrary,” “well-defined,” and “established.” We lawyers know that leaves a lot of wiggle room. It is not arbitrary use of power if the laws are ill-defined. If there is a lot of wiggle room on the basis of the definition, how can the “rule of law” be so well-established? So stop one was not much help.

Next stop: YouTube. Search: “Rule of Law definition for kids.” That should bring up something basic.

A video from UNESCO (The United Nations Educational, Scientific and Cultural Organization) broke it down into four principles: accountability, just laws, transparency, and equality before the law.

My first thought was that perhaps I searched in too high an age group. However, my patience to view the whole four-minute video was rewarded. Accountability means everyone has to follow the same rules. Just laws are essential to protect our fundamental rights. Laws must be transparent, predictable, and non-arbitrary. The law must not favor one person or group above others. However, that still seemed a bit too complicated. I was looking for simple.

Next video. Ah ha! A video from the Law Society of New South Wales, in Australia of all places, brought it back home for me. This video described the term to mean that laws should govern citizens, not a “few, untouchable individuals, like politicians.” It is around this premise that most of our use of the term centers. As John Adams put it, “a government of laws, not men.” That is the understanding I was looking for.

The Administrative Office of the United States Courts describes the rule of law as “a principle under which all persons, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated, and consistent with international human rights principles.”

Refreshing myself, even in a rudimentary fashion, on the foundations of the term really helped to re-energize my thoughts on the rule of law, and its importance to a functioning society.

I had fallen into the trap of allowing the real meaning to get lost in its excessive and sometimes haphazard use. If someone had challenged me on the term before my little journey back to the basics, I am not sure I would have been able to adequately explain it.

Now, I think I can, and as a result, I have a renewed appreciation for a lawyer’s essential, indispensable role in protecting and promoting the rule of law.•

__________

J. Todd Spurgeon is a senior partner at Kightlinger and Gray in its New Albany office and a director of the DTCI. Opinions expressed are those of the author.