Bhumics Week 5: The RBIO Part 2

I have long been intrigued by the varied and often competing understandings of the rule of law. The concept resists any single, all-encompassing definition. Rather, it is shaped by different traditions--some emphasize the sovereignty of the state, others highlight the limitation of arbitrary power, and yet others focus on the practical efficacy of legal rules. Each perspective, in its own way, underscores how the rule of law stands at the intersection of legality, morality, and political power.

In the state-centric view of law where "Rex, Lex" suggests that the sovereign--whether an individual monarch or the collective will of the people--ultimately sets the legal tone. Here, law's validity often overshadows the question of legitimacy, leaving moral considerations in the background. By contrast, the English tradition of the rule of law originated as a form of resistance against absolute power, epitomized by the struggle against the Stuart monarchy. In that view, it is not enough that laws be formally enacted; the force of law cannot rest on procedure alone. It depends on moral fitness, fairness, and the sense that communities have genuinely 'authored' the laws they follow.

Therefore, colonial law doesn't have any legitimacy - which is why breaking the law (say, the Salt March to Dandi) was not just an act of defiance in the Gandhian freedom struggle, but also a legal act in its own right.

Of course, the judiciary plays a central role in maintaining the delicate balance between rule and legitimacy. Here again, Gandhi's trial in 1922 is instructive: he appeared in the Ahmedabad court, charged under section 124A of the Indian Penal Code, without counsel. He pleaded guilty to all charges and requested that he be given the maximum penalty. Gandhi was sentenced to 6 years in prison, but in reality, it was the British Empire that was on trial, for its laws were found wanting.

What emerges from all these reflections is a reminder that the rule of law and its legitimacy are neither automatic nor guaranteed. The historical evolution of the rule of law, spanning jurisdictions and centuries, teaches us that its ultimate strength rests on the public's sustained belief in its fairness, justice, and fundamental reasonableness. My hope is that despite the weight of liberal governance, we can better maintain the core promise that the rule of law represents: a just and stable foundation for our collective life. My worry is that the law is structurally incapable of grasping our planetary existence, or almost as worrying, that it needs radical transformation to span the Earth, not the Globe.

Back to our history lesson

From Feudalism to the Sovereign State

In the late Middle Ages, feudal societies were characterized by overlapping and often conflicting jurisdictions, where power was distributed among various lords, the clergy, and monarchs. This fragmented structure gradually gave way to the modern sovereign state, defined by territorial exclusivity and centralized authority.

Stanford encyclopedia sayeth: Sovereignty, though its meanings have varied across history, also has a core meaning, supreme authority within a territory

The emergence of sovereignty as a legal and political concept was crucial in this transformation, as it established the principles of internal hierarchy and external autonomy, laying the foundation for the state system as we understand it today. A key consequence of this shift was the reorganization of coercive power. States claimed a monopoly over the legitimate use of force, both domestically and externally, diminishing the role of non-state actors in warfare and law enforcement. This transformation was not uniform; it coexisted with alternative institutional innovations such as urban leagues, independent communes, and city-states. The justification for sovereignty was further reinforced by Roman legal traditions, which provided secular rulers with an intellectual framework to consolidate their authority. Alongside this, legal pluralism persisted, with unwritten customary law existing alongside codified statutes, reflecting the transition from a personalized to an institutionalized legal order.

The Development of International Law

The evolution of international law was deeply intertwined with the changing nature of war and conflict. Medieval legal traditions sought to justify war through the doctrine of jus ad bellum—the right to wage war based on just causes. Over time, this framework gave way to jus in bello, which focused on the conduct of war rather than its justification. This marked the beginning of the secularization and positivization of international law, shifting it away from moral and theological justifications toward procedural and institutional rules.

The Westphalian system, emerging in the 17th century, introduced the principle of hostes equaliter justi—the notion that all warring parties are legally equal. This formalized war as a legitimate function of the state, governed by established rules. Early international law was still influenced by the remnants of a universal Christian legal order, as seen in the works of Grotius, though it increasingly distanced itself from medieval ideas of empire and papal authority. The eventual focus of international law became the establishment of collective security mechanisms designed to regulate conflicts and prevent unilateral aggression by states, thereby contributing to a more stable international order.

The Rule of Law in the Modern State

The post-war era witnessed the entrenchment of the rule of law as a core principle of political organization, particularly in the Western world. The rule of law was conceived as a mechanism to guarantee individual rights and constrain arbitrary political power. Although often treated as a universal ideal, its conceptualization varies across traditions. In the Anglo-Saxon world, it is closely tied to legal predictability and the limitation of executive power, whereas in continental Europe, terms like Rechtsstaat and État de droit emphasize the role of legal norms in structuring governance.

Historically, the rule of law represented a profound shift in state-society relations. It institutionalized the distribution and differentiation of power within the state, reinforcing the transition from individual duties to individual rights. European societies, particularly in England, North America, Germany, and France, pioneered different models of legal governance, each contributing to the broader evolution of the rule of law. At its core, the rule of law sought to balance the need for order and security with the demand for civil and political freedoms, making it a defining feature of liberal governance.

Challenges and Transformations of the Rule of Law

Despite its successes, the rule of law has encountered significant challenges in the modern era. The rise of legislative inflation—wherein legal systems become overwhelmed by excessive laws—has complicated the management of legal frameworks. Additionally, the increasing centralization of power has sometimes blurred the separation of powers, raising concerns about executive overreach.

The emergence of the welfare state introduced another layer of complexity. As states took on expanded social and economic responsibilities, the function of law shifted from merely constraining power to actively enabling governance. This transition led to debates about the judiciary's role, with some arguing that increased judicial authority represents an overreach into political decision-making, while others view it as a natural response to legal and constitutional review.

The accelerating pace of technological change presents a profound challenge to the rule of law, straining the capacity of legal systems to keep pace with new realities. Laws and regulations, designed to be stable and deliberative, often lag behind rapid technological developments, creating gaps in governance and enforcement. This discrepancy has led to reactive policymaking, where legal responses arrive only after technological disruptions have already reshaped industries, social norms, and power structures.

One of the most pressing concerns is the rise of digital platforms and artificial intelligence, which operate in regulatory gray areas due to their evolving nature. The ability of AI to generate decisions, curate information, and even automate governance processes raises fundamental questions about accountability and transparency. Who bears responsibility when an AI-driven system makes a decision that harms individuals or undermines democratic principles? Traditional legal doctrines, designed for human actors, struggle to apply to autonomous or algorithmic decision-making systems.

Moreover, the international nature of digital technologies complicates jurisdictional authority. The internet transcends national borders, making it difficult to enforce domestic laws on global platforms. This has allowed technology firms to operate in regulatory loopholes, avoiding legal scrutiny while exerting immense influence over economic and political landscapes. Efforts to regulate Big Tech, such as data privacy laws and antitrust actions, often arrive too late or prove inadequate in addressing emerging forms of digital monopolization.

Ultimately, the challenge posed by rapid technological advancement is not merely one of regulation but of the very nature of legal adaptation. If the law is to remain an effective instrument of justice, governance, and accountability, it must develop mechanisms that allow for greater agility without sacrificing the core principles of fairness, due process, and human rights. The question remains: Can the rule of law evolve fast enough to govern an increasingly digital and algorithmic world?

What does all of this mean for the RBIO?

The Rules-Based Order in Contemporary Global Governance

In today’s globalized world, the rules-based international order operates in a space that is neither pure anarchy nor complete constitutional rule. It involves elements of hierarchy, where authority is derived from international institutions, treaties, and norms. The acceptance of international authority depends on both legal formalism and the belief in the legitimacy of global institutions.

Since the 1990s, there has been a noticeable increase in international public authority, reflected in the growing role of institutions such as the United Nations, the European Union, and the World Trade Organization. The rule of law has become a central normative framework in global governance, with states and international organizations actively promoting its adoption and internalization. This process is evident in efforts by the EU and other actors to export legal standards through diplomatic and economic mechanisms.

However, this expansion of the rule of law into global politics raises fundamental questions about sovereignty and legitimacy. Some scholars argue that the global rule of law reflects an assertion of authority rather than a neutral legal order, making it susceptible to power imbalances and political contestation. Moreover, the effectiveness of the rule of law depends on its cultural and historical context—what works in one setting may not be easily translatable to another.

Towards World Government

The rule of law, in its many forms, remains an aspiration rather than a fully realized reality. Its success depends on political will, institutional design, and societal commitment to legal principles. While global legal frameworks have evolved to regulate international relations, the most ambitious vision for a rule-based global order is the idea of a world government—an entity that would unify all of humanity under a single political authority.

Historically, this idea has captivated thinkers, from ancient monarchs and religious leaders to modern philosophers. Today, some argue that the forces of capitalist globalization are already paving the way for such a system, as international institutions, economic interdependence, and transnational cooperation increasingly shape global governance. A world government, its proponents claim, could provide solutions to some of the most pressing global challenges, including warfare, poverty, economic instability, pandemics, and environmental crises.

At its core, a world government is envisioned as a political entity with legislative, executive, and judicial functions spanning the entire globe. Like national governments, it would assert sovereignty, exercise legitimate authority, and establish a monopoly on the use of force to enforce laws. Advocates believe that such a system could finally put an end to inter-state conflict, establishing a legal framework capable of preventing war and controlling the proliferation of weapons. A unified economic policy, including a single global currency, could stabilize markets and eliminate financial inequalities between nations, while coordinated action on climate change and pandemics could ensure that no region is left vulnerable to crises that affect the entire planet.

Yet, despite its potential advantages, the notion of a world government remains deeply contentious. Critics question whether such an authority could ever be effectively established or maintained, particularly given the vast diversity of cultures, political traditions, and national interests across the world. Many fear that a centralized global government would result in an unaccountable bureaucratic machine, or worse, a global tyranny from which no dissenting community could escape. The very principles of democracy and political competition—so essential to vibrant governance—could be threatened in a system where citizens have no alternative governing structures to which they can turn.

Beyond these concerns, the question of national sovereignty looms large. Many governments would be unwilling to cede their independence to a global authority, particularly if it meant subordinating domestic laws to international mandates. Others argue that global governance need not take the form of a singular ruling entity, but rather an interconnected system of international institutions, treaties, and legal frameworks that facilitate cooperation without demanding absolute centralization.

Indeed, different models of world government have been proposed, each attempting to balance the need for global coordination with the preservation of political autonomy. One such model is global federalism, which envisions a democratic world government with limited powers, allowing nation-states to retain control over domestic matters while addressing global concerns collectively. This approach emphasizes subsidiarity—the principle that decisions should be made at the most local level possible. Cosmopolitan democracy, on the other hand, advocates for the expansion of democratic principles beyond the nation-state, promoting decentralized governance through international organizations like the United Nations rather than a single, centralized authority.

Existing international frameworks already offer glimpses of what a more integrated global system could look like. The United Nations Charter sets principles for maintaining peace and fostering cooperation among nations, while treaties such as the Geneva Conventions and various human rights agreements establish global legal standards on humanitarian issues. Disarmament treaties like the Non-Proliferation Treaty aim to limit global security risks, and international trade agreements promote economic interdependence. While these institutions lack the enforcement power of a sovereign government, they represent an evolving system of governance that could either serve as a foundation for a future world government or as a decentralized alternative to one.

Ultimately, the idea of a world government exists at the intersection of utopian idealism and pragmatic skepticism. While it offers an enticing solution to global challenges, it also raises profound concerns about governance, accountability, and human freedom. Whether the world moves toward a more integrated political order or remains a patchwork of independent nations bound by international law and cooperation, the debate over world government continues to reflect humanity’s enduring quest for order, justice, and peace in an increasingly interconnected world

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