There are many interpretations of what the rule of law actually is, which in turn complicates defining it precisely. A classical dictionary definition of the rule of law describes it as, ‘…the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power’.
4 That everyone is equal in the eyes of the law means that everyone is subject to the law and no-one is above the law, in other words that everyone, no matter who you are, is subject to the laws of a state. Besides having the function of curtailing state power, another perspective of the rule of law defines it not only in terms of the characteristics that a legal system should encompass but also in terms of justice in society in general, human rights being one such value.
5
Dworkin illuminates the distinction between the rule of law as comprising the existence of formal institutions of governance against the notion of it comprising considerations of morality, the first referred to as the ‘rule-book’ conception and the latter as the ‘rights’ conception. The former states that the power of the state should be exercised against individuals only where this is based on rules that have been made public. Both government and citizens must then abide by these rules until they are changed according to the rules for change that have also been made public. This conception does not say anything about the nature of the rules in the ‘rule-book’, this being related to substantive justice. The rights conception assumes that people have moral rights and duties with respect to one another and political rights against the state. These moral rights are required recognition in the positive law in order that people may enforce them through the courts or other institutions. It therefore disregards the distinction between formal requirements and the requirements of justice, requiring the rules in the rule-book to take heed of substantive and moral requirements.
8 The rule of law can also be described in terms of function, where it is argued that there is a limitation to studying the notion of the rule of law as an object, the question of its importance for the goals of development paramount as well as how these are to be achieved.
9 Simmonds uses the metaphor of the spoon: in explaining what a spoon is, the formal features are only intelligible in light of a description of what the spoon does, that is its purpose, and a spoon that has a bad purpose is a bad spoon.
10
One of the most well-known theories describing the rule of law is attributed to Lon Fuller in his work The Morality of Law.
11 Fuller too perceives the rule of law as a combination of the formal institutions of society together with what he terms ‘the inner morality of law’. Fuller’s conception of the rule of law is based on eight principles that are formalistic in nature: (1) there must be rules, (2) they must be prospective, not retrospective, (3) the rules must be published, (4) the rules must be intelligible, (5) the rules must not be contradictory, (6) compliance with the rules must be possible, (7) the rules must not be constantly changing and (8) there must be congruence between the rules as declared and as applied by officials.
12 Nevertheless, Simmonds, in his interpretation of Fuller’s outwardly formalistic depiction of the rule of law, argues that the ‘inner morality’ aspect of Fuller’s eight principles comes to the fore in relation to two further concepts, namely ‘the morality of duty’ and ‘the morality of aspiration’.
13 The former involves a duty to abide by laws that are obligatory and either one does this or not whereas the latter concept is not an ‘either/or’ notion but rather a question of degree, where one strives towards this ideal to the best of one’s ability.
14 The eight principles (representing the morality of duty in their rationale) provide a degree of regularity and order necessary in order to attain the morality of aspiration, and they represent the morality of aspiration in that they represent an ideal to which a legal system should strive towards.
15 Furthermore, the attainment of the morality of aspiration requires that there be rules and orderliness, created by the morality of duty, and that eventually allow us to attempt to attain that situation as depicted by the concept ‘rule of law’. Accordingly, Simmonds argues that the morality of duty and the morality of aspiration differ in their goal, where the latter concerns the attainment of the ‘good life’ in a context where ‘people can meaningfully formulate and pursue personal projects and ideals’. The rule of law therefore is an instrument allowing us to ‘value the projective capacities of men and women’, an ideal that is achievable only where there are clear and notified rules.
16 Simmonds, in referring to the eight principles, states:
These values are internal to the law in the sense that they form a part of the concept of law itself. We understand what the law is only by reference to its purpose; and its purpose is an ideal state of affairs (the rule of law) represented by the eight principles. […][The law] carries a commitment to the idea of man as a rational purposive agent, capable of regulating his conduct by rules rather than as a pliable instrument to be manipulated; and it carries a commitment to the values of the rule of law as expressed in the eight principles.’
17
Consequently, there are many interpretations of the rule of law that find an expression in theories, which usually reflect the interwoven nature of both the functional and moral aspect of the rule of law.
18 Wennerström, shedding light on the practical manifestation of the rule of law, states that it is usually used in national and international relations as a reference to a, ‘general order and […] predictability of events. It can refer to the state of affairs in a particular country or to the way in which a country conducts its international relations’. In addition to the formal and substantive divide, Wennerström refers to a third conception of the rule of law, namely the ‘functional’ conception, measuring the quality and also quantity of specific functions of a legal system, for example, the predictability of judicial decisions or the waiting period for access to the judiciary.
19 It is with the emphasis on functionality the rule of law that is measured in regard to its manifestation within a state.
20 The World Justice Project states:
Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of justice, opportunity, and peace—underpinning development, accountable government, and respect for fundamental rights’.
21
Brownsword describes the rule of law as a combination of the condemnation of arbitrary governance on the one hand and the irresponsible citizenship on the other. According to this view, the rule of law represents a contract between, on the one hand, lawmakers, law-enforcers, law-interpreters and law appliers and on the other hand citizens (including lawmakers, law-enforcers, law-interpreters and law appliers). In its essence, the contract entails that the actions of the governors always be in accordance with the law and that the citizens abide by decisions made in accordance with the legal rules, the result being that no one is above the law.
22 The Council of Europe has also weighed in on defining the rule of law:
The rule of law is a principle of governance by which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated and consistent with international human rights norms and standards. It entails adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in applying the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
23
The rule of law, therefore, is a political ideal, although its content and composition does remain a point of discussion and to a certain degree controversial.
24 In defining the rule of law in relation to its purpose, Krygier, in simple terms, stresses the fact that the rule is a solution to a problem, the problem being how to make the law rule.
25 The reason for striving to make the law rule are concerns regarding the way power is exercised, more specifically the abuse of power by exercising this power in an arbitrary manner.
26 Associated with the notion of how power is exercised is the idea that the source of authority to rule originates from a moral right to rule, where this moral dimension dictates that rules be publicly declared in a perspective manner and are general, equal and certain.
27
As illuminated in this section, the rule of law is an allusive concept that comprises multiple interpretations, ranging from its function as a mechanism for curtailing arbitrary state power to a mechanism for describing the attributes necessary for attaining a just society that takes cognisance of various ideals and values, for example, human rights. Considering that not all these perspectives can be examined simultaneously, the following sections examine the rule of law from the perspective of its role as mechanism for determining rules, which if followed, create the conditions for allowing individuals to reach their potential in terms of the goals that they set for themselves and to achieve the ideals that they pursue. This is particularly relevant considering that the technology described below, discussed under the umbrella term called AI, can be described as especially inhibiting to the extent that individuals are made more susceptible to being manipulated and essentially categorized by the technology, albeit in a rather blunt manner. Connected to this is the notion of power, which too elevates the function of the rule of law as a mechanism for minimizing the abuse of power.