This article is about Modern Standard Urdu. For other uses, see Urdu (disambiguation).
Urdu (;Urdu: اُردُو ALA-LC:Urdū[ˈʊrd̪uː] ( listen), or Modern Standard Urdu) is a Persianised and standardisedregister of the Hindustani language. It is the official national language and lingua franca of Pakistan. In India, it is one of the 22 official languages recognized in the Constitution of India, having official status in the five states of Jammu and Kashmir, Telangana, Uttar Pradesh, Bihar, and Jharkhand, as well as the national capital territory of Delhi.
Apart from specialized vocabulary, Urdu is mutually intelligible with Standard Hindi, another recognized register of Hindustani. The Urdu variant of Hindustani received recognition and patronage under British rule when the British replaced the local official languages with English and Hindustani written in Nastaʿlīq script, as the official language in North and Northwestern India. Religious, social, and political factors pushed for a distinction between Urdu and Hindi in India, leading to the Hindi–Urdu controversy.
Main article: History of Hindustani
Urdu, like Hindi, is a form of Hindustani. It evolved from the medieval (6th to 13th century) Apabhraṃśa register of the preceding Shauraseni language, a Middle Indo-Aryan language that is also the ancestor of other modern Indo-Aryan languages, including the Punjabi dialects. Urdu developed under the influence of the Persian and Arabic languages, both of which have contributed a significant amount of vocabulary to formal speech. Around 99% of Urdu verbs have their roots in Sanskrit and Prakrit.
Although the word Urdu is derived from the Turkic word ordu (army) or orda, from which English horde is also derived, Turkic borrowings in Urdu are minimal and Urdu is also not genetically related to the Turkic languages. Urdu words originating from Chagatai and Arabic were borrowed through Persian and hence are Persianized versions of the original words. For instance, the Arabic ta' marbuta ( ة ) changes to he ( ه ) or te ( ت ).[note 1] Nevertheless, contrary to popular belief, Urdu did not borrow from the Turkish language, but from Chagatai, a Turkic language from Central Asia. Urdu and Turkish borrowed from Arabic and Persian, hence the similarity in pronunciation of many Urdu and Turkish words.
Arabic influence in the region began with the late first-millennium Muslim conquests of the Indian subcontinent. The Persian language was introduced into the subcontinent a few centuries later by various Persianized Central Asian Turkic and Afghan dynasties including that of Mahmud of Ghazni. The Turko-Afghan Delhi Sultanate established Persian as its official language, a policy continued by the Mughal Empire, which extended over most of northern South Asia from the 16th to 18th centuries and cemented Persian influence on the developing Hindustani.
With the advent of the British Raj, Persian was no longer the language of administration but Hindustani, still written in the Persian script, continued to be used by both Hindus and Muslims. The name Urdu was first used by the poet Ghulam Hamadani Mushafi around 1780.(p18) From the 13th century until the end of the 18th century Urdu was commonly known as Hindi.(p1) The language was also known by various other names such as Hindavi and Dehlavi.(pp21–22) The communal nature of the language lasted until it replaced Persian as the official language in 1837 and was made co-official, along with English. Urdu was promoted in British India by British policies to counter the previous emphasis on Persian. This triggered a Brahman backlash in northwestern India, which argued that the language should be written in the native Devanagari script. Thus a new literary register, called "Hindi", replaced traditional Hindustani as the official language of Bihar in 1881, establishing a sectarian divide of "Urdu" for Muslims and "Hindi" for Hindus, a divide that was formalized with the division of India and Pakistan after independence (though there are Hindu poets who continue to write in Urdu to this day, with post-independence examples including Gopi Chand Narang and Gulzar).
There have been attempts to "purify" Urdu and Hindi, by purging Urdu of Sanskrit loanwords, and Hindi of Persian loan words, and new vocabulary draws primarily from Persian and Arabic for Urdu and from Sanskrit for Hindi. English has exerted a heavy influence on both as a co-official language.
Speakers and geographic distribution
See also: Languages of Pakistan and Languages of India
There are over 100 million native speakers of Urdu in India (more than 80% of it) and Pakistan together: there were 52 million and 80.5 million Urdu speakers in India some 5% and 6.5% of the total population of India as per the 2001 and 2011 censuses respectively; approximately 10 million in Pakistan or 7.57% as per the 1998 census and 16 million in 2006 estimates; and several hundred thousand in the United Kingdom, Saudi Arabia, United States, and Bangladesh (where it is called "Bihari"). However, a knowledge of Urdu allows one to speak with far more people than that, because Hindustani, of which Urdu is one variety, is the third most commonly spoken language in the world, after Mandarin and English . Because of the difficulty in distinguishing between Urdu and Hindi speakers in India and Pakistan, as well as estimating the number of people for whom Urdu is a second language, the estimated number of speakers is uncertain and controversial.
Owing to interaction with other languages, Urdu has become localized wherever it is spoken, including in Pakistan. Urdu in Pakistan has undergone changes and has incorporated and borrowed many words from regional languages, thus allowing speakers of the language in Pakistan to distinguish themselves more easily and giving the language a decidedly Pakistani flavour. Similarly, the Urdu spoken in India can also be distinguished into many dialects like Dakhni (Deccan) of South India, and Khariboli of the Punjab region. Because of Urdu's similarity to Hindi, speakers of the two languages can easily understand one another if both sides refrain from using specialized vocabulary. The syntax (grammar), morphology, and the core vocabulary are essentially identical. Thus linguists usually count them as one single language and contend that they are considered as two different languages for socio-political reasons.
In Pakistan, Urdu is mostly learned as a second or a third language as nearly 93% of Pakistan's population has a native language other than Urdu. Despite this, Urdu was chosen as a token of unity and as a lingua franca so as not to give any native Pakistani language preference over the other. Urdu is therefore spoken and understood by the vast majority in some form or another, including a majority of urban dwellers in such cities as Karachi, Lahore, Okara District, Sialkot, Rawalpindi, Islamabad, Multan, Faisalabad, Hyderabad, Peshawar, Quetta, Jhang, Sargodha and Skardu. It is written, spoken and used in all provinces/territories of Pakistan although the people from differing provinces may have different indigenous languages, as from the fact that it is the "base language" of the country. For this reason, it is also taught as a compulsory subject up to higher secondary school in both English and Urdu medium school systems. This has produced millions of Urdu speakers from people whose native language is one of the other languages of Pakistan, who can read and write only Urdu. It is absorbing many words from the regional languages of Pakistan. This variation of Urdu is sometimes referred to as Pakistani Urdu.
Although most of the population is conversant in Urdu, it is the first language of only an estimated 7% of the population who are mainly Muslim immigrants (known as Muhajir in Pakistan) from different parts of South Asia. The regional languages are also being influenced by Urdu vocabulary. There are millions of Pakistanis whose native language is not Urdu, but because they have studied in Urdu medium schools, they can read and write Urdu along with their native language. Most of the nearly five million Afghan refugees of different ethnic origins (such as Pashtun, Tajik, Uzbek, Hazarvi, and Turkmen) who stayed in Pakistan for over twenty-five years have also become fluent in Urdu. With such a large number of people(s) speaking Urdu, the language has acquired a peculiar Pakistani flavour further distinguishing it from the Urdu spoken by native speakers and diversifying the language even further.
Many newspapers are published in Urdu in Pakistan, including the Daily Jang, Nawa-i-Waqt, Millat, among many others (see List of newspapers in Pakistan#Urdu language Newspapers).
In India, Urdu is spoken in places where there are large Muslim minorities or cities that were bases for Muslim Empires in the past. These include parts of Uttar Pradesh, Madhya Pradesh, Bihar, Telangana, Andhra Pradesh, Maharashtra (Marathwada), Karnataka and cities such as Lucknow, Delhi, Bareilly, Meerut, Saharanpur, Muzaffarnagar, Roorkee, Deoband, Moradabad, Azamgarh, Bijnor, Najibabad, Rampur, Aligarh, Allahabad, Gorakhpur, Agra, Kanpur, Badaun, Bhopal, Hyderabad, Aurangabad, Bangalore, Kolkata, Mysore, Patna, Gulbarga, Parbhani, Nanded, Malegaon, Bidar, Ajmer, and Ahmedabad. Some Indian schools teach Urdu as a first language and have their own syllabi and exams. Indian madrasahs also teach Arabic as well as Urdu. India has more than 3,000 Urdu publications, including 405 daily Urdu newspapers. Newspapers such as Neshat News Urdu, Sahara Urdu, Daily Salar, Hindustan Express, Daily Pasban, Siasat Daily, The Munsif Daily and Inqilab are published and distributed in Bangalore, Malegaon, Mysore, Hyderabad, and Mumbai (see List of newspapers in India).
Outside South Asia, it is spoken by large numbers of migrant South Asian workers in the major urban centres of the Persian Gulf countries. Urdu is also spoken by large numbers of immigrants and their children in the major urban centres of the United Kingdom, the United States, Canada, Germany, Norway, and Australia. Along with Arabic, Urdu is among the immigrant languages with the most speakers in Catalonia.
Cultural identity and Islam
Religious and social atmospheres in early nineteenth century India played significant roles in the development of the Urdu register. In addition to Islam, India was characterized by a number of tribal religions which each represented different spiritual outlooks and maintained different languages. These tribal religions were later categorized by British colonialists as Hinduism. Under British rule, the dispersed tribes associated with Hinduism pushed for unification by means of a common language. Hindi became the distinct register spoken by those who sought to construct a Hindu identity in the face of colonial rule. As Hindi separated from Hindustani to create a distinct spiritual identity, Urdu, which was originally spoken by both Hindu and Muslim elites, was employed to create a definitive Islamic identity for the Muslim population in India.
As Urdu and Hindi became means of religious and social construction for Muslims and Hindus respectively, each register developed its own script. According to Islamic tradition, Arabic, the language spoken by the prophet Muhammad and uttered in creation of the Qur'an, holds spiritual significance and power. Because Urdu was intentioned as means of unification for Muslims in Northern India and later Pakistan, it adopted an Arabic script.
Urdu continued its role in developing a Muslim identity as the Islamic Republic of Pakistan was established with the intent to construct a homeland for Islamic believers. Several languages and dialects spoken throughout the regions of Pakistan produced an imminent need for a uniting language. Because Urdu was the symbol of Islamic identity in Northern India, it was selected as the national language for Pakistan. While Urdu and Islam together played important roles in developing the national identity of Pakistan, disputes in the 1950s (particularly those in East Pakistan), challenged the necessity for Urdu as a national symbol and its practicality as the lingua franca. The significance of Urdu as a national symbol was downplayed by these disputes when English and Bengali were also accepted as official languages in East Pakistan (now Bangladesh).
Urdu is the national and one of the two official languages of Pakistan, along with English, and is spoken and understood throughout the country, whereas the state-by-state languages (languages spoken throughout various regions) are the provincial languages. Only 7.57% of Pakistanis have Urdu as their first language, but Urdu is mostly understood and spoken all over Pakistan as a second or third language. It is used in education, literature, office and court business. It holds in itself a repository of the cultural and social heritage of the country. Although English is used in most elite circles, and Punjabi has a plurality of native speakers, Urdu is the lingua franca and national language of Pakistan. In practice English is used instead of Urdu in the higher echelons of government.
Urdu is also one of the officially recognized languages in India and the official language of Jammu and Kashmir, one of the two official languages of Telangana and also has the status of "additional official language" in the Indian states of Uttar Pradesh, Bihar, Jharkhand, West Bengal and the national capital, New Delhi.
In Jammu and Kashmir, section 145 of the Kashmir Constitution provides: "The official language of the State shall be Urdu but the English language shall unless the Legislature by law otherwise provides, continue to be used for all the official purposes of the State for which it was being used immediately before the commencement of the Constitution."
Urdu has a few recognised dialects, including Dakhni, Rekhta, and Modern Vernacular Urdu (based on the Khariboli dialect of the Delhi region). Dakhni (also known as Dakani, Deccani, Desia, Mirgan) is spoken in Deccan region of southern India. It is distinct by its mixture of vocabulary from Marathi and Konkani, as well as some vocabulary from Arabic, Persian and Chagatai that are not found in the standard dialect of Urdu. Dakhini is widely spoken in all parts of Maharashtra, Telangana, Andhra Pradesh and Karnataka. Urdu is read and written as in other parts of India. A number of daily newspapers and several monthly magazines in Urdu are published in these states. In terms of pronunciation, the easiest way to recognize native speakers is by their pronunciation of the letter "qāf" (ق) as "k̲h̲e" (خ).
Many bilingual or multi-lingual Urdu speakers, being familiar with both Urdu and English, display code-switching (referred to as "Urdish") in certain localities and between certain social groups.
On 14 August 2015, the Government of Pakistan launched the Ilm Pakistan movement, with a uniform curriculum in Urdish. Ahsan Iqbal, Federal Minister of Pakistan, said, "Now the government is working on a new curriculum to provide a new medium to the students which will be the combination of both Urdu and English and will name it Urdish."
Comparison with Modern Standard Hindi
Further information: Hindi–Urdu controversy, Hindustani phonology, and Hindustani grammar
Standard Urdu is often contrasted with Standard Hindi. Apart from religious associations, the differences are largely restricted to the standard forms: Standard Urdu is conventionally written in the Nastaliq style of the Persian alphabet and relies heavily on Persian and Arabic as a source for technical and literary vocabulary, whereas Standard Hindi is conventionally written in Devanāgarī and draws on Sanskrit. However, both have large numbers of Arabic, Persian and Sanskrit words, and most linguists consider them to be two standardised forms of the same language, and consider the differences to be sociolinguistic, though a few classify them separately. Old Urdu dictionaries also contain most of the Sanskrit words now present in Hindi. Mutual intelligibility decreases in literary and specialized contexts that rely on educated vocabulary. Further, it is quite easy in a longer conversation to distinguish differences in vocabulary and pronunciation of some Urdu phonemes. As a result of religious nationalism since the partition of British India and continued communal tensions, native speakers of both Hindi and Urdu frequently assert them to be distinct languages, despite the numerous similarities between the two in a colloquial setting.
The barrier created between Hindi and Urdu is eroding: Hindi speakers are comfortable with using Persian-Arabic borrowed words and Urdu speakers are also comfortable with using Sanskrit terminology.
Main article: Hindustani phonology
- Marginal and non-universal phonemes are in parentheses.
- /ɣ/ is post-velar.
- Marginal and non-universal vowels are in parentheses.
See also: Hindustani etymology
Urdu's vocabulary has borrowings from various languages. A corpus-based quantitative survey of the etymological origins of basic Urdu vocabulary is shown in the adjacent table. Many of the words of Arabic origin have been adopted through Persian and have different pronunciations and nuances of meaning and usage than they do in Arabic. There are also a smaller number of borrowings from Chagatai, and Portuguese.
Levels of formality
Urdu in its less formalised register has been referred to as a rek̤h̤tah (ریختہ, [reːxt̪aː]), meaning "rough mixture". The more formal register of Urdu is sometimes referred to as zabān-i Urdū-yi muʿallá (زبانِ اُردُوئے معلّٰى [zəbaːn eː ʊrd̪u eː moəllaː]), the "Language of the Exalted Camp", referring to the Imperial army.
The etymology of the word used in the Urdu language for the most part decides how polite or refined one's speech is. For example, Urdu speakers would distinguish between پانی pānī and آب āb, both meaning "water"; the former is used colloquially and has older Indic origins, whereas the latter is used formally and poetically, being of Persian origin.
If a word is of Persian or Arabic origin, the level of speech is considered to be more formal and grand. Similarly, if Persian or Arabic grammar constructs, such as the izafat, are used in Urdu, the level of speech is also considered more formal and grand. If a word is inherited from Sanskrit, the level of speech is considered more colloquial and personal. This distinction is similar to the division in English between words of Latin, French and Old English origins.
Writing system 
Main articles: Urdu alphabet and Urdu braille
Further information: Hindustani orthography
Urdu is written right-to left in an extension of the Persian alphabet, which is itself an extension of the Arabic alphabet. Urdu is associated with the Nastaʿlīq style of Persian calligraphy, whereas Arabic is generally written in the Naskh or Ruq'ah styles. Nasta’liq is notoriously difficult to typeset, so Urdu newspapers were hand-written by masters of calligraphy, known as kātib or khush-nawīs, until the late 1980s. One handwritten Urdu newspaper, The Musalman, is still published daily in Chennai.
Urdu has also historically been written in the Kaithi script. A highly Persianized and technical form of Urdu was the lingua franca of the law courts of the British administration in Bengal, Bihar, and the North-West Provinces & Oudh. Until the late 19th century, all proceedings and court transactions in this register of Urdu were written officially in the Persian script. In 1880, Sir Ashley Eden, the Lieutenant-Governor of Bengal abolished the use of the Persian alphabet in the law courts of Bengal and Bihar and ordered the exclusive use of Kaithi, a popular script used for both Urdu and Hindi. Kaithi's association with Urdu and Hindi was ultimately eliminated by the political contest between these languages and their scripts, in which the Persian script was definitively linked to Urdu.
More recently in India, Urdu speakers have adopted Devanagari for publishing Urdu periodicals and have innovated new strategies to mark Urdu in Devanagari as distinct from Hindi in Devanagari. Such publishers have introduced new orthographic features into Devanagari for the purpose of representing the Perso-Arabic etymology of Urdu words. One example is the use of अ (Devanagari a) with vowel signs to mimic contexts of ع (‘ain), in violation of Hindi orthographic rules. For Urdu publishers, the use of Devanagari gives them a greater audience, whereas the orthographic changes help them preserve a distinct identity of Urdu.
Main article: Urdu literature
Urdu has become a literary language only in recent centuries, as Persian was formerly the idiom of choice for the Muslim courts of North India. However, despite its relatively late development, Urdu literature boasts of some world-recognised artists and a considerable corpus.
Urdu afsana is a kind of Urdu prose in which many experiments have been done by short story writers from Munshi Prem Chand to Naeem Baig.
"Rule of Law" redirects here. For other uses, see Rule of Law (disambiguation).
Not to be confused with rule according to higher law.
The rule of law is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials. The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings.John Locke wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon liberty. The "rule of law" was further popularized in the 19th century by British jurist A. V. Dicey. However the principle, if not the phrase, was recognized by ancient sages and philosophers, such as Aristotle, who wrote "It is more proper that law should govern than any one of the citizens".
Rule of law implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges. In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.
Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey, development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India, and Rome.
In the West, the ancient Greeks initially regarded the best form of government as rule by the best men.Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law. Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law:
It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.
The Roman statesman Cicero is often cited as saying, roughly: "We are all servants of the laws in order to be free." During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.
In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law. In contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.
There has recently been an effort to reevaluate the influence of the Bible on Western constitutional law. In the Old Testament, the book of Deuteronomy imposes certain restrictions on the king, regarding such matters as the numbers of wives he might take and of horses he might acquire (for his own use). According to Professor Bernard M. Levinson, "This legislation was so utopian in its own time that it seems never to have been implemented...." The Deuteronomic social vision may have influenced opponents of the divine right of kings, including Bishop John Ponet in sixteenth-century England.
In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official could claim to be above the law, not even the caliph. However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.
Alfred the Great, Anglo-Saxon king in the 9th century, reformed the law of his kingdom and assembled a law code (the Doom Book) which he grounded on biblical commandments. He held that the same law had to be applied to all persons, whether rich or poor, friends or enemies. This was likely inspired by Leviticus 19:15: "You shall do no iniquity in judgment. You shall not favor the wretched and you shall not defer to the rich. In righteousness you are to judge your fellow."
In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates back under the rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes. This foundation for a constitution was carried into the United States Constitution.
In 1481, during the reign of Ferdinand II of Aragon, the Constitució de l'Observança was approved by the General Court of Catalonia, establishing the submission of royal power (included its officers) to the laws of the Principality of Catalonia.
Early modern period
See also: Rechtsstaat
The first known use of this English phrase occurred around AD 1500. Another early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons:
Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government....
In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions (according to his own report) "that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.)."
Among the first modern authors to use the term and give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title, Latin for "the law is king", subverts the traditional formulation rex lex ("the king is law").James Harrington wrote in Oceana (1656), drawing principally on Aristotle’s Politics, that among forms of government an “Empire of Laws, and not of Men” was preferable to an “Empire of Men, and not of Laws”.
John Locke also discussed this issue in his Second Treatise of Government (1690):
The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.
The principle was also discussed by Montesquieu in The Spirit of the Laws (1748). The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755).
In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Paine wrote in his pamphlet Common Sense 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." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."
The influence of Britain, France and the United States contributed to spreading the principle of the rule of law to other countries around the world.
Meaning and categorization of interpretations
The Oxford English Dictionary has defined "rule of law" this way:
The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.
Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.
Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion". Among modern legal theorists, one finds that at least two principal conceptions of the rule of law can be identified: a formalist or "thin" definition, and a substantive or "thick" definition; one occasionally encounters a third "functional" conception. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.
Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared (prohibitions or exigencies), with prospective application (punishments or consequences tied to a given prohibition or exigency), and possess the characteristics of generality (usually meaning consistency and comprehensibility), equality (that is, applied equally throughout all society), and certainty (that is, certainty of application for a given situation), but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. Still, there are other views as well. Some believe that democracy is part of the rule of law.
The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law. This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights.
The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.
The functional interpretation of the term "rule of law", consistent with the traditional English meaning, contrasts the "rule of law" with the "rule of man." According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of law". Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.
The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion."
Status in various jurisdictions
The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. Research, like the Worldwide Governance Indicators, defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map below. A government based on the rule of law can be called a "nomocracy", from the Greeknomos (law) and kratos (power or rule).
The preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms says "the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law".
In France and Germany the concepts of rule of law (Etat de droit and Rechtsstaat respectively) are analogous to the principles of constitutional supremacy and protection of fundamental rights from public authorities (see public law), particularly the legislature. France was one of the early pioneers of the ideas of the rule of law. The German interpretation is more "rigid" but similar to that of France and the United Kingdom.
Finland's constitution explicitly requires rule of law by stipulating that "the exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed."
Main article: Rule of law in the United Kingdom
In the United Kingdom the rule of law is a long-standing principle of the way the country is governed, dating from Magna Carta in 1215 and the Bill of Rights 1689. In the 19th century, A. V. Dicey, a constitutional scholar and lawyer, wrote of the twin pillars of the British constitution in his classic work Introduction to the Study of the Law of the Constitution (1885); these two pillars are the rule of law and parliamentary sovereignty.
All government officers of the United States, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion, and the executive branch also has various discretionary powers including prosecutorial discretion.
Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law," and if so, which one. For example, John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria," and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.
Some modern scholars contend that the rule of law has been corroded during the past century by the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound. For example, Brian Tamanaha asserts: "The rule of law is a centuries-old ideal, but the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries."
Others argue that the rule of law has survived but was transformed to allow for the exercise of discretion by administrators. For much of American history, the dominant notion of the rule of law, in this setting, has been some version of A. V. Dicey's: "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land." That is, individuals should be able to challenge an administrative order by bringing suit in a court of general jurisdiction. As the dockets of worker compensation commissions, public utility commissions and other agencies burgeoned, it soon became apparent that letting judges decide for themselves all the facts in a dispute (such as the extent of an injury in a worker's compensation case) would overwhelm the courts and destroy the advantages of specialization that led to the creation of administrative agencies in the first place. Even Charles Evans Hughes, a Chief Justice of the United States, believed "you must have administration, and you must have administration by administrative officers." By 1941, a compromise had emerged. If administrators adopted procedures that more-or-less tracked "the ordinary legal manner" of the courts, further review of the facts by "the ordinary Courts of the land" was unnecessary. That is, if you had your "day in commission," the rule of law did not require a further "day in court." Thus Dicey's rule of law was recast into a purely procedural form.
James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course." Chief Justice John Marshall (joined by Justice Joseph Story) took a similar position in 1827: "When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law."
East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism, which advocated strict adherence to law. The influence of one school of thought over the other has varied throughout the centuries. One study indicates that throughout East Asia, only South Korea, Singapore, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent:
Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party ... That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade?
In countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.
In Thailand, a kingdom that has had a constitution since the initial attempt to overthrow the absolute monarchy system in 1932, the rule of law has been more of a principle than actual practice. Ancient prejudices and political bias have been present in the three branches of government with each of their foundings, and justice has been processed formally according to the law but in fact more closely aligned with royalist principles that are still advocated in the 21st century. In November 2013, Thailand faced still further threats to the rule of law when the executive branch rejected a supreme court decision over how to select senators.
In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges."
Japan had centuries of tradition prior to World War II, during which there were laws, but they did not provide a central organizing principle for society, and they did not constrain the powers of government (Boadi, 2001). As the 21st century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.
Various organizations are involved in promoting the rule of law.
The Council of Europe
The Statute of the Council of Europe characterizes the rule of law as one of the core principles which the establishment of the organization based on. The paragraph 3 of the preamble of the Statute of the Council of Europe states: "Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy." The Statute lays the compliance with the rule of law principles as a condition for the European states to be a full member of the organization.
International Commission of Jurists
In 1959, an event took place in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. The event consisted of over 185 judges, lawyers, and law professors from 53 countries. This later became known as the Declaration of Delhi. During the declaration they declared what the rule of law implied. They included certain rights and freedoms, an independent judiciary and social, economic and cultural conditions conducive to human dignity. The one aspect not included in The Declaration of Delhi, was for rule of law requiring legislative power to be subject to judicial review.
The Secretary-General of the United Nations defines the rule of law as:
a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions. The Security Council has held a number of thematic debates on the rule of law, and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security, children in armed conflict, and the protection of civilians in armed conflict. The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda. The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights education.
International Bar Association
The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.
World Justice Project
As used by the World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld:
1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property;
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law—such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice.
The International Development Law Organization (IDLO)
The International Development Law Organization (IDLO) is an intergovernmental organization with a joint focus on the promotion of rule of law and development. It works to empower people and communities to claim their rights, and provides governments with the know-how to realize them. It supports emerging economies and middle-income countries to strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity. It is the only intergovernmental organization with an exclusive mandate to promote the rule of law and has experience working in more than 170 countries around the world.
The International Development Law Organization has a holistic definition of the rule of law:
More than a matter of due process, the rule of law is an enabler of justice and development. The three notions are interdependent; when realized, they are mutually reinforcing. For IDLO, as much as a question of laws and procedure, the rule of law is a culture and daily practice. It is inseparable from equality, from access to justice and education, from access to health and the protection of the most vulnerable. It is crucial for the viability of communities and nations, and for the environment that sustains them.
IDLO is headquartered in Rome and has a branch office in The Hague and has Permanent Observer Status at the United Nations General Assembly in New York City.
The International Network to Promote the Rule of Law (INPROL)
The International Network to Promote the Rule of Law (INPROL) is a network of over 3,000 law practitioners from 120 countries and 300 organizations working on rule of law issues in post-conflict and developing countries from a policy, practice and research perspective. INPROL is based at the US Institute of Peace (USIP) in partnership with the US Department of State Bureau of International Narcotics and Law Enforcement, the Organization for Security and Cooperation in Europe (OSCE) Strategic Police Matters Unit, the Center of Excellence for Police Stability Unit, and William and Marry School of Law in the United States. Its affiliate organizations include the United Nations Office on Drugs and Crime, Folke Bernadotte Academy, International Bar Association, International Association of Chiefs of Police, International Association of Women Police, International Corrections and Prisons Association, International Association for Court Administration, International Security Sector Advisory Team at the Geneva Centre for the Democratic Control of Armed Forces, Worldwide Association of Women Forensic Experts (WAWFE), and International Institute for Law and Human Rights.
INPROL provides an online forum for the exchange of information about best practices. Members may post questions, and expect a response from their fellow rule of law practitioners worldwide on their experiences in addressing rule of law issues.
In relation to economics
One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without an answer to the question: does the rule of law matter for economic development or not?Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors.
The standards of constitutional economics can be used during annual budget process, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor.
The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. To date, the term “rule of law” has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy.
The "rule of law" primarily connotes "protection of property rights." The economist F. A. Hayek analyzed how the Rule of Law might be beneficial to the free market. Hayek proposed that under the Rule of Law individuals would be able to make wise investments and future plans with some confidence in a successful return on investment when he stated: "under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts."
Studies have shown that weak rule of law (for example, discretionary regulatory enforcement) discourages investment. Economists have found, for example, that a rise in discretionary regulatory enforcement caused US firms' to abandon international investments.
In relation to culture
The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments or Roerich Pact is an inter-American treaty. The most important idea of the Roerich Pact is the legal recognition that the defense of cultural objects is more important than the use or destruction of that culture for military purposes, and the protection of culture always has precedence over any military necessity. The Roerich Pact signed on April 15, 1935 by the representatives of 21 American states in the Oval Office of the White House (Washington, DC). It was the first international treaty signed in the Oval Office. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is the first international treaty that focuses on the protection of cultural property in armed conflict. It was signed at The Hague, Netherlands on 14 May 1954 and entered into force on 7 August 1956. As of June 2017, it has been ratified by 128 states.
The rule of law can be hampered when there is a disconnect between legal and popular consensus. An example is intellectual property. Under the auspices of the World Intellectual Property Organization, nominally strong copyright laws have been implemented throughout most of the world; but because the attitude of much of the population does not conform to these laws, a rebellion against ownership rights has manifested in rampant piracy, including an increase in peer-to-peer file sharing. Similarly, in Russia, tax evasion is common and a person who admits he does not pay taxes is not judged or criticized by his colleagues and friends, because the tax system is viewed as unreasonable. Bribery likewise has different normative implications across cultures.
Notes and references
2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents have confidence in and abide by the rules of society.
*Percentile rank indicates the percentage of countries worldwide that rate below the selected country.
- ^Cole, John et al. (1997). The Library of Congress, W. W. Norton & Company. p. 113
- ^ abThe Oxford English Dictionary has defined "rule of law" as:
See“Civil Affairs and Rule of Law”, Dudley Knox Library, Naval Postgraduate School (accessed October 18, 2013) (quoting the OED).[dead link] The phrase "rule of law" is also sometimes used in other senses. See Garner, Bryan A. (Editor in Chief). Black's Law Dictionary, 9th Edition, p. 1448. (Thomson Reuters, 2009). ISBN 978-0-314-26578-4
The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.