Rule(r) of Law

It’s a curious thing to translate Rule of Law to portuguese. Even in english this concept might have multiple meanings. It is so important that Jeremy Waldron, New York University Law School Professor, wrote an essay where he tries to draw its concept: “The Concept and the Rule of Law” – I’ll come back to it later.

“Rule of Law” is usually translated to portuguese as “State of Law” (Estado de Direito), sometimes as “Law’s Empire” (Império da Lei), but it could be translated as “Rule of Law” literally (Régua da Lei) – in this particular case the word “Rule” meaning the tool “ruler”, not “Rule” as a meaning of regulation, law, statute and so on…

A Ruler (régua) is a tool common to all of us. No matter what each of us suppose something might measure, each person can make his own guess about the size of a given object and different people can make different guesses until they use a tool, Ruler, to make sure the real object’s size/length.

So, a Ruler is an object that everyone can rely on. No matter what is my guess, your guess, that other person guess and all the multiple people’s guesses, the true size/length of something is what everyone can check using this tool, which is external and common to all of us.

This is what “Rule of Law” should mean, it settles the legal system where the Law is its tool and the language its measure. Of course, the Rule of Law is much more complex than a simple metric ruler, we cannot just compare its measure with whatever we want and have always one and only rate possible.

Even though language can be most of the time polysemic – and that’s why we need and have several books about legal reasoning, theory of law, philosophy of law, etc. -, it has semantic limits, boundaries that once it’s crossed the language stop making any sense. The point is, the language’s semantics limits are people’s first (and last) resort of certainty about the Rule of Law and the Law itself. Language’s semantics boundaries are the ultimate common terminology everybody can count.

Jeremy Waldron says, besides several other things, that the Rule of Law should emphasize the value of settled, determinate rules and the predictability that they make possible. 

Further on he cites Ronald Dworkin saying that Law is a system in a sense that has to do with logic, coherence, and integrity.

The Rule of Law is a multi-faceted ideal, but most conceptions give central place to a requirement that people in positions of authority should exercise their power within a constraining framework of public norms rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong.

If you cannot count on language semantics, how can you trust the legal system which is based on it as its fundamental source? 

According to the english version of the Brazilian Constitution found at Brazilian Supreme Court’s website, its item LVII of article 5th says the following:

no one shall be considered guilty before the issuing of a final and unappealable penal sentence

I already talked about this subject here, but in that ocasion the matter was not object of constitutional control, it was only regarding that particular case.  

Two Constitutional control actions were proposed before the Supreme Court to settle the matter about this subject, ADC 43 and 44. Despite the undoubtedly clear written rule “unappealable penal sentence“, on October 5th, which was our Constitution’s 28th anniversary, the Supreme Court ruled that a person can be considered guilty and be convicted even though he could still appeal to the Superior or Supreme Courts.

It’s always good to remember that that provision is a Constitutional Unamendable Clause, so, not even the Brazilian Legislative branch could abolish or undermine such fundamental right.

Perhaps the difficulty to translate Rule of Law to portuguese might be one of the problems on fixing its proper meaning among our people’s culture. Brazilians never had more than 30 years of democratic stability. I think they never thought on Law (Rule of Law) as the origin and constraint to the use of power by authorities in a Constitutional Democracy. 

Now it doesn’t matter anymore since we can say that there’s no such thing as Rule of Law in Brazil, but only the Rule of Judiciary.


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