The idea of a rule of law is based on the perceived desire of man for liberty and equality. Especially in Europe and especially before the age of enlightenment, people’s freedom were repressed and hampered by religious commandments and feudal reign. Political participation and official posts in the executive or judiciary were reserved to citizens of a certain social strata. Ordinary people had to share the fate of the poor and to accept a less ambitious life than the members of the aristocracy. There was very little upward social mobility.¹

There is no standard rule of law of the western civilization. The rule of law is a political idea, what it means and how it actually works depends on the respective society.² As Jeffrey Jowell stated:

“The rule of law has meant many things to many people”.³

The rule of law-concept has been developed over hundreds of years⁴ and is still a highly contested concept.⁵ There are ongoing disputes and disagreements especially over its meaning, its benefits and disadvantages.⁶

However, there is a broad consensus as well concerning the functions, as the essential elements and tools. Today two main functions of the rule of law are recognized: one function is to impose restraints on government officials, the other to maintain order and coordinate behavior among citizens.⁷ Descriptions of the tools and elements of the rule of law usually either follow a broader (“thick” or substantive) or narrow (“thin” or formal) definition.⁸

The representatives of the thin theory emphasize the formal or instrumental aspects of the rule of law⁹—features that legal systems must possess to function effectively. These features typically include: procedural rules for law-making, laws made by an authorized institution to be valid; transparency: laws be publicized and easily accessible; laws be prospective, open, relatively clear, consistent, equal, stable and certain¹⁰; laws be enforced fairly and impartially. The formal theory requires a variety of institutions to implement these features and respective rules. Among them are entities that take care of the availability of laws, the fair application of laws including impartial tribunals.¹¹ Moreover, government officials and citizens are bound by the law and act in consistence with the law.¹² The key to ensure this is the separation of powers and a clear distinction between those who apply the laws, and those watch over this application.¹³