Controlling Migration Within The State PDF

WEEK 2 = CONTROLLING MIGRATION WITHIN THE STATE - Last week, we focused on democracy. - When studying democracy, often the concept of the rule of law is also discussed. - ‘Democracy is one of the core values of the Council of Europe, together with human rights and the rule of...

WEEK 2 = CONTROLLING MIGRATION WITHIN THE STATE - Last week, we focused on democracy. - When studying democracy, often the concept of the rule of law is also discussed. - ‘Democracy is one of the core values of the Council of Europe, together with human rights and the rule of law’. This is from the ECHR. - The ECHR is a document created by the Council of Europe (made of 46 countries). - The court that ensures the rights stipulated in the ECHR is the one in Strasbourg. Law is a multilayered system (interconnected in complex ways) - The image outlines the multilayered structure of law, showing how different levels of legal systems interact in a complex way. - It uses the protection of rights as an example and highlights the relationship between international, EU, and national law. 1. International Law Definition: International law consists of treaties, agreements, and customary principles that transcend national borders. Examples: ○ Human rights treaties, such as the European Convention on Human Rights (ECHR). Enforcement Mechanisms: ○ International courts or treaty bodies, like the European Court of Human Rights (ECtHR), which ensure that states comply with their obligations under international law.  Relevance to Rights Protection: ○ These treaties provide universal or regional frameworks to protect rights that may not be adequately protected at the national level. ○ Individuals can sometimes bring cases directly to international courts if national remedies fail. 2. EU Law Definition: The legal framework specific to EU member states, which includes treaties, regulations, and directives. Example: ○ The Charter of Fundamental Rights of the European Union: A binding document that consolidates key human rights applicable within the EU's jurisdiction. Enforcement Mechanism: ○ The Court of Justice of the European Union (CJEU) oversees the interpretation and application of EU law to ensure uniformity across member states. Relevance to Rights Protection: ○ EU law serves as a bridge between international standards and national law. It ensures that member states uphold EU-wide fundamental rights and provides an additional layer of protection if national systems fall short. 3. National Law Definition: The domestic legal framework of individual countries, including their constitutions, statutes, and judicial systems. Example: ○ Constitutional fundamental rights: Rights enshrined in the national constitution, such as freedom of speech or equality before the law. Enforcement Mechanism: ○ National courts, especially Supreme Courts or Constitutional Courts, which ensure that domestic laws comply with the constitution. Relevance to Rights Protection: ○ National law is the first point of recourse for individuals seeking to protect their rights. If national remedies are inadequate or violate international obligations, individuals may escalate their cases to EU or international bodies. What is a constitution? - Why is defining the constitution as ‘the national law of a state’ not precise enough? → because the constitution does not incorporate all laws.  - Narrow / formal meaning = Central written document setting out the basic rules applying to the government of states. - Broad / substantive meaning = entire body of fundamental rules that govern the states, compromising laws that: - Attribute power to public authorities. - Regulate the fundamental relations between public authorities. - Regulate the fundamental relations between public authorities and the individual. - + societal significance A constitution attributes power and regulates exercise. Basic questions of constitutional law - Does institution X have power Y? - Because public law powers may only be exercised if it has been explicitly allocated that power by the constitution. - Does the exercise of power respect the limits of that power defined by the law? - Is the power and its exercise in line with other constitutional rules, such as fundamental rights? - Who has the power to supervise the exercise of powers? Constitutionalism and the rule of law - Constituonalism = the exercise of public power is governed and constrained by a constitution and the rule of law. - No absolute power, no arbitrary. - Even monarchs are bound by constitutions. → essential to democracy and the rule of law. Two basic branches of constitutional law - The rule of law includes both: 1. Institutional law = - Governs the distribution of power and tasks. 2. Fundamental rights = - Protects citizens against the state. Difference between substantive and procedural Procedural = doesn't say anything about the outcome, the procedural approach cares about the way in which decisions are made and laws are implemented. It doesn't care about the substance and the content of the law. Substantive = about the content of the law. There can’t be discrimination in how the law applies to a poor person and a rich one. What is the rule of law? - Under the rule of law, every citizen is subject to the law including people who are lawmakers, law enforcement officials and judges. - This contrasts the idea that the ruler is above the law, for example by divine right in tyrannies and oligarchies. - Thin / formalist notion of the rule of law = - No judgement about the ‘justness’ of the law itself. - Definition of specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law: laws must be prospective, public, and have characteristics of generality, equality, and certainty. - RISK = triviality, rule-bound domination. The risk is triviality = what will the law say? eg Hitler was elected democratically. - Thick / substantive notion = - Rule of law entails a requirement of ‘justice’. - Inclusion of certain substantive qualities or rights that are said to be based on, or derived from, the rule of law (eg human rights). - RISK = redundancy, full theory of social justice. Who decides on that ‘common good’ that the rule of law works to achieve? Li Shuguang: ‘... 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’. Rule of law / Rechtsstaat / Etat de droit Rule of Law presupposes (Heringa): - Respect for legality - Guarantees of equality before the law - Absence of arbitrariness - Separation of powers - Independence of the judiciary - Respect for fundamental rights The Rule of Law is the cornerstone of democratic governance, ensuring that all individuals and institutions are accountable under the law. It consists of: Legality, equality, and the absence of arbitrariness. Separation of powers and judicial independence. Legal certainty and protection of fundamental rights. These principles are expressed universally but implemented within the specific constitutional and legal contexts of different nations and supranational frameworks like the ECHR. Together, they create a system that balances state authority with individual freedoms, ensuring justice and fairness in society. Core elements of the Rule of Law: Respect for Legality: Government actions must adhere to existing laws, ensuring that no one is above the law, including the government itself (Principle of Legality as emphasized in the UK and Heringa’s criteria). This ensures legal certainty and includes a ban on retroactive laws. Guarantees of Equality Before the Law: Laws must be applied impartially to all individuals, ensuring fairness and justice without discrimination (Heringa, UK definition). Absence of Arbitrariness: Decisions by public authorities must be based on clear, predictable laws, not arbitrary discretion (UK definition, European Convention on Human Rights (ECHR)). Separation of Powers: The legislative, executive, and judicial functions of government are distinct, providing a system of checks and balances to prevent abuse of power (Heringa, Art 20(3) German Constitution, Dutch definition). Independence of the Judiciary: Courts must operate free from external influences, ensuring unbiased interpretation and application of the law (Heringa).  Respect for Fundamental Rights: Governments must uphold and protect human rights, with any restrictions adhering to the principles of necessity, proportionality, and legality (Heringa, ECHR, Dutch definition). Binding Nature of Laws: Laws are binding on both citizens and the government. General laws must be clear, accessible, and stable, enabling legal certainty (Art 20(3) German Constitution, Dutch definition). Judicial Review: Courts must have the power to review laws and executive actions to ensure compliance with constitutional and legal standards (Art 20(3) German Constitution, Dutch definition). UN-Secretary General Kofi Annan, 2004 - The rule of law is ‘(...) 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’. Under the rule of law, citizens can trust that … - The government abides by the Constitution and the European and international treaties and regulations (legality). - Laws and regulations are foreseeable and understandable and make government action predictable (legal certainty). - Everyone is equal before the law, no one is above the law and everyone is equally protected by it: no privilege, bias, or discrimination (equality before the law). - Every citizen is assured of respect for fundamental rights. - Everyone has the opportunity to seek justice in a fair trial before and impartial and independent court (access to justice). - Citizens are able to elect their representatives who enact laws and regulations in a democratic process (separation of powers). The essence of a rule of law is that all exercise of power must have its origin solely in law. Law comes before power. And that implies that the law itself may also come about only according to the rules of law (non-arbitrariness). Where can the principle of ‘rule of law’ be found in the Dutch constitution? Civic stratification Stratification of migrants through residence titles (schematic overview) Top: Migrants with the most rights, such as access to labor markets, social security, and stability. Bottom: Migrants with fewer or no rights, reflecting their precarious situation in society. The "Rules of Transition" indicate pathways for moving between these categories, suggesting that certain migrants can improve their status depending on legal conditions or policies. Permanent Residents: They enjoy the most rights (e.g., labor access, social security). Permanent residents are non-citizens with long-term, secure residency rights. Equivalent to "long-term residents" in the EU. While they enjoy extensive rights, they are still distinct from citizens because they lack full political participation, such as voting in national elections. This category provides stability and integration opportunities for migrants, but it still maintains a clear division from full citizenship. Temporary and Limited Rights Categories: This section contains migrants with limited but recognized statuses. a. Student Visa / Work Visa / Family Reunification: These categories grant temporary but specific rights (e.g., to study, work, or live with family).  Rights are conditional on fulfilling the visa requirements (e.g., remaining enrolled in education or employed). These statuses are more stable than lower categories but remain bureaucratically controlled and time-bound. b. International Protection / Refugee Status: Migrants with refugee status are protected under international law (e.g., the 1951 Refugee Convention). They are recognized as fleeing persecution or war. Refugees have some rights (e.g., not being deported) but often face significant barriers to permanent residency or integration. While this group is protected from return, their future status remains uncertain, and they are vulnerable to changing policies. c. Tourist Visa / Family Visit Visa: ○ Short-term permits that allow temporary stays but prohibit work or long-term integration. ○ These statuses provide minimal rights and can lead to irregular status if overstayed. Precarious Status: Migrants with very limited or no formal rights. a. Toleration Status ("Duldung"): Not a true legal status but an administrative category for migrants who cannot be deported for practical reasons: ○ Their home country refuses to accept them. ○ Their identities or nationalities are unclear. Rights are extremely limited, and these individuals live under the constant risk of deportation. Toleration is described as a mechanism for states to keep track of individuals rather than offer meaningful protection. People in this group have minimal access to services or employment, reinforcing their vulnerability. b. No Status / Irregular / Sans-Papiers: These individuals lack any legal authorization to stay in the country. They are the most vulnerable, with no access to rights like healthcare, social security, or employment. These individuals may have entered the country irregularly or fallen out of legal status (e.g., overstaying visas).  States face ethical and legal obligations under international law to protect their basic human rights, but compliance varies widely. This group lives on the margins of society, often hidden and unable to access protections. - The arrows on the right represent rules or pathways for moving between categories: Upward Mobility: Migrants in lower categories (e.g., toleration or irregular) may transition to higher categories (e.g., work visa, refugee status) through legal pathways or regularization programs. Downward Mobility: Conversely, migrants in stable categories may fall into irregular status if they lose their visas or fail to meet residency requirements. - The schematic representation demonstrates: 1. The hierarchical nature of migrant stratification, where rights decrease as you move downward. 2. The precariousness of certain statuses, especially toleration and irregular categories. 3. The rigid, bureaucratic structure that lacks a holistic view of individuals. Key points and the schematic overview: 1. Exclusion of Citizens: ○ The stratification framework does not include citizens (passport holders) as it focuses solely on non-nationals or aliens. 2. Toleration Status: ○ Described as not a true "status" because it grants very few rights. ○ Individuals with toleration status are under constant threat of deportation but are allowed to stay temporarily for practical reasons: Their home country might refuse to accept them. Their identities or national affiliations might be unclear. ○ Notably, international law recognizes an individual’s right to return to their country but does not obligate states to accept them. 3. Distinction Between Passport Holders and Permanent Residents: ○ Passport Holders: Nationals born in the country, enjoying full citizenship. ○ Permanent Residents: Non-citizens who have secured long-term residence rights (e.g., "long-term residents" in the EU). 4. Criticism of the System: ○ The stratification system is criticized for its lack of a holistic, person-centered approach, being overly bureaucratic. ○ While due process is emphasized for all migrants, the document critiques the adequacy of rights granted, hinting that the minimal provision (e.g., a 5-euro daily allowance) may fall short of fulfilling basic human rights. What is the stratification of migrants? Broad Categories of Migrant Stratification: Citizens: ○ Enjoy the full range of rights in their nation-state. ○ Not part of the stratification system as they are nationals. Denizens: ○ Non-citizens with a stable legal status (e.g., permanent residents). ○ Granted many rights, including residence, employment, and social security, though often limited political rights. Margizens: ○ Migrants with an unstable or no legal status. ○ Have few to no rights, reflecting their precarious position in the host state. Historical Context: The relevant legal regimes emerged in the 19th century alongside the rise of nation-states. Key developments: ○ A special set of rules excluded non-nationals from the rights of citizens. ○ Non-nationals were accorded an inferior legal position within the host state. Modern Migration Law and Stratification: Modern migration law formalizes differences in treatment among non-citizens, creating a hierarchical system based on: ○ Immigration status (e.g., permanent residency, temporary visas, irregular status). ○ Purpose of admission (e.g., work, study, family reunification). This system produces distinctive combinations of rights: ○ Residence rights ○ Access to employment ○ Access to social security systems Impact of Immigration Law: Immigration law explicitly defines a plurality of immigration statuses, resulting in: ○ Inequality among classes of migrants. ○ A stratification of rights, where access to rights diminishes for those with less secure statuses. Key Concept: Migration law deliberately creates stratification, where legal status determines the degree of inclusion and rights migrants can access. What is required for the stratification of migrants to be in accordance with the Rule of Law? - For the stratification of migrants to be in line with the constitutional building of the rule of law in Bulgaria, various things should be in place: first, migrants must have equal access to transparent and fair procedures. Article 4 of the Bulgarian Constitution suggests that everybody, irrespective of their nationality, has protection from arbitrary or discriminatory treatment. - This means that any classification or stratification of migrants based on their legal status should pass the threshold of non-discrimination and be based on valid laws. For example, the policies in which status would determine rights between a refugee and an economic migrant should at least be guaranteed to grant equal access to justice, protection against arbitrary detention, and due process of law. - In conclusion, any treatment of migrants by Bulgaria, if it is to pass the test of constitutionality under the rule of law, should be based on transparency, legality, and equality. Stratification should not translate into arbitrary or unequal treatment, which again falls in line with ideals pronounced by both Sellers and the Constitution of Bulgaria for fairness and equal protection under the law. What is required for the stratification of migrants to be in accordance with the Rule of Law? 1. Clarity, Predictability, and Transparency The stratification of migrants must be clear, publicly available, and easy to understand. The Rule of Law demands that laws and policies governing migrant stratification are predictable, so individuals know their rights and obligations. Ambiguous or vague policies risk arbitrary enforcement, which undermines the Rule of Law. 2. Non-Discrimination and Equality The Rule of Law insists on equal treatment before the law. Stratification cannot be based on arbitrary or discriminatory criteria such as race, religion, or origin. Any differentiation between categories of migrants (e.g., economic migrants, refugees, asylum seekers) must serve a legitimate aim, be proportionate, and justified under international law. Legal norms that introduce arbitrary hierarchies violate the principles of fairness and justice. 3. Access to Justice and Accountability Migrants must have access to mechanisms for challenging decisions that affect their legal status or categorization. Judicial and administrative remedies ensure that stratification decisions adhere to legal norms and can be reviewed. Accountability for wrongful decisions is a core component of the Rule of Law. 4. Legal Certainty and Procedural Safeguards Stratification must follow clearly established laws and fair processes. Migrants must be informed of the criteria used to classify them, the procedures involved, and their right to appeal. Without procedural safeguards, there is a risk of arbitrary treatment and abuse of power. 5. Compliance with International Human Rights Law The Rule of Law requires that national frameworks align with international human rights standards. Regardless of their status, all migrants retain fundamental rights, such as the right to dignity, non-refoulement, and protection against inhumane treatment. Stratification cannot result in human rights violations. 6. Avoidance of Arbitrary Decision-Making Stratification must be free from political manipulation, discriminatory practices, or unchecked administrative discretion. Decisions must be guided by objective, legal criteria to prevent arbitrariness. 7. Proportionality and Legitimate Purpose The legal basis for migrant stratification must pursue legitimate state objectives, such as national security or economic development, while balancing the rights and needs of migrants. The principle of proportionality ensures that measures taken are not excessive or unjust. By adhering to these requirements, the stratification of migrants can align with the Rule of Law, ensuring fairness, justice, and respect for human dignity in migration governance. Knowledge Clip: It does not end at the border - Controlling migration within the State 1. Introduction: Migration Control Beyond Borders In the previous session, the focus was on entry into a state—the moment migrants cross borders. This included discussions on the justifications for restrictive admissions and the right of states to control entry. Migration control at the border is often visible and dramatic (e.g., Mediterranean boats, Pacific detention centers, U.S. policies under Trump), leading to clear human rights concerns.  However, migration control does not end at the border. States have developed complex systems to manage and control migrants within their territory. 2. Civic Stratification: Concept and Definition The term Civic Stratification was coined by Lydia Morris (2003), a sociologist, to describe the hierarchical status systems states impose on migrants already within their borders. Legal scholars have adopted this term to analyze how states: ○ Exercise regulatory control over categories of migrants; and ○ Manage inclusion and exclusion of migrants in the national social and economic order. States not only regulate entry but continuously decide migrants’ inclusion or exclusion into: 1. The labor market (right to work); 2. Social security systems (social benefits); and 3. Security of residence (duration and renewability of stay). 3. Classes of Migrants: Citizens, Denizens, and Margizens The stratification of migrants creates hierarchical categories: 1. Citizens: ○ Full legal status with access to all rights (e.g., political participation, residence, labor, social benefits). 2. Denizens: ○ Stable status with many rights but not full citizenship. ○ Includes secure residence, access to the labor market, and some social benefits. 3. Margizens: ○ Unstable or insecure status, often temporary. ○ Limited or no rights, such as exclusion from work and social support systems. ○ Particularly vulnerable to exclusion and precarious living conditions. While these are broad categories, stratification can be far more detailed and complex, with states creating numerous statuses that differentiate migrants’ rights further. 4. Mechanisms of Migration Control Within the State States use legal status definitions to control migrants after admission: 1. Residence Rights: ○ Conditions for obtaining and renewing residence permits. ○ Duration of stay (temporary, permanent, etc.). 2. Access to Work:  ○ Regulation of migrants’ ability to join the labor market. 3. Access to Social Benefits: ○ Inclusion or exclusion from welfare systems. These mechanisms provide states with regulatory power and allow surveillance and control over migrants’ lives. 5. Rules of Transition: Progression and Barriers States also determine the conditions under which migrants can access more secure statuses, such as permanent residence or citizenship: Migrants must often meet specific requirements: ○ Economic requirements (e.g., stable income, employment). ○ Cultural and linguistic integration (e.g., citizenship tests, language tests). These conditions can serve as tools for states to discipline and regulate migrants. Challenges: Integration requirements can be exclusionary for certain groups, creating a system where some migrants progress to secure statuses while others remain in temporary or precarious positions. Those unable to meet the conditions risk being trapped in permanent second-class status. 6. The Role of Law in Civic Stratification The stratification of migrants raises questions about compliance with the Rule of Law: Rule of Law principles require that laws be: ○ Clear, predictable, and non-arbitrary; ○ Applied fairly without discrimination; and ○ Provide access to justice and safeguards against abuse. Migrants’ unequal treatment (e.g., exclusion from work, precarious residence) must not result in arbitrary power or systematic violations of fundamental rights. Key Criticism: Stratification often creates hierarchical systems that exacerbate inequality and exclusion, particularly for margizens. 7. Conclusion: Civic Stratification as Post-Entry Control Migration control does not stop at border admissions; it extends into the state through civic stratification. States use legal frameworks to differentiate rights and opportunities for migrants.  While stratification is a tool for state governance, it raises concerns about exclusion, inequality, and compliance with the Rule of Law. Knowledge Clip: Civic Stratification - Hierarchies of Migrants Introduction to Civic Stratification The concept of civic stratification is central to Lydia Morris' work. Lydia Morris, a sociologist at the University of Essex, approaches migration law from a sociological perspective: ○ Focus: Not the meaning of migration law, but its consequences for migrants' positions in society. ○ Unlike lawyers, who often analyze legal rules comparatively (equality, universal rights), Morris argues that: Migration law does not create equality; it creates inequality. Two Dominant Legal Positions on Migration Morris frames her argument in response to two main positions in legal literature: 1. National Sovereignty Position ○ Migration is governed by nation-states. ○ States are sovereign to decide who may enter and who qualifies for national citizenship. 2. International Human Rights Position ○ Migration is increasingly shaped by international law and conventions: Refugee conventions define who qualifies as a refugee. European Human Rights conventions and the EU courts interpret and enforce human rights and European citizenship. European citizenship transcends national boundaries by granting EU citizens supranational status. Lydia Morris' Critique of the Debate Morris critiques the focus on "who controls migration" (national vs. international). Instead, she shifts the question to: ○ "How is migration actually controlled?" ○ What are the consequences of migration law for migrants in practice? Key Argument: ○ The national and international levels should not be viewed in isolation; they work interdependently.  ○ Migrants experience the interplay between national closure (exclusion) and international rights (inclusion). The Results of Migration Law Morris highlights two central outcomes of migration law for society: 1. Creation of Categories of Migrants Migrants cannot travel freely as individuals. Instead, they must fit into legally recognized categories, such as: ○ Refugee ○ Guest worker ○ Family member ○ Other predefined legal categories 2. Creation of Hierarchies Between Migrant Categories Categories of migrants are treated unequally. Each category has: ○ Different rights (e.g., access to work, voting, social benefits) ○ Different obligations to fulfill This creates a hierarchy where some migrants are more secure while others are precarious. Legal Status and Inequality Migrants' experiences with the law vary significantly based on their legal status: ○ Some migrants have secure legal status and do not worry about their rights. ○ Others are under constant pressure to meet legal criteria to maintain their status. This differentiation produces social inequalities: ○ Legal systems establish distinctions between migrants, creating tiers of inclusion and exclusion. ○ Migrants' lives are shaped by these hierarchies, which determine access to resources, rights, and stability. Civic Stratification as a Lens Civic stratification provides a framework to analyze: ○ How migration law produces inequalities among migrants. ○ The hierarchical organization of migrants within society. It allows us to see migration law not just as a tool of control but as a mechanism that perpetuates social inequalities. What is the rule of law and why is it so important? - Mortimer Sellers 1. Introduction Sellers introduces the rule of law as the "imperium legum"—the empire of laws, not men. He distinguishes this from “rule by law” or legalism, which allows arbitrary power under a facade of law. The chapter outlines the central points of the text: 1. Defining the rule of law. 2. Explaining what it requires. 3. Exploring its origins. 4. Discussing its importance. 5. Understanding how to secure it. The rule of law is described as a pure social good, essential for justice and the separation of arbitrary power from governance. 2. What the Rule of Law Is The rule of law means the subordination of arbitrary power to laws that serve the public good (the res publica). It opposes tyranny, which imposes laws for the benefit of certain individuals or factions. Sellers emphasizes the connection between: ○ Rule of law, ○ Liberty (laws protecting against domination), ○ Republican government (government serving the common good). The chapter stresses that laws must serve the common good and not private interests. Achieving this requires an ongoing effort to create and maintain impartial laws and institutions. 3. What the Rule of Law Requires from Us The rule of law demands that the will of public officials be removed from the administration of justice as much as possible. Public power must serve the public good, while private power must be limited by laws to protect the community. Specific roles: ○ Legislators: Must create laws for the common good; otherwise, it’s corruption. ○ Public officials: Must enforce laws impartially; otherwise, it’s tyranny. ○ Judges: Must interpret laws fairly; otherwise, it’s arbitrary. Sellers explains that the rule of law limits power through impartiality and adherence to the common good, rather than individual or factional interests. 4. Where the Rule of Law Comes From The rule of law originates from human nature: people desire justice through laws. All legal systems claim legitimacy by asserting that they promote justice. Historically, the rule of law tradition developed as a struggle between: ○ Government de jure (rule of law based on reason and justice). ○ Government de facto (rule of men, based on power and arbitrary control). The historical evolution of this idea—from Rome to England, Venice, and modern constitutional states—reflects humanity’s pursuit of justice and impartial governance. 5. Why the Rule of Law Is So Valuable The rule of law prevents tyranny and oppression, ensuring justice and protecting human rights. It is enshrined in global declarations like the Universal Declaration of Human Rights, which recognizes it as essential to avoid anarchy and rebellion. Sellers contrasts the benefits of the rule of law with despotism (as argued by Hobbes), which sacrifices freedom for security. Constitutionalism arises from the rule of law, creating checks and balances to prevent abuse of power. Sellers stresses that the rule of law is critical to creating good and equal laws that benefit all citizens. 6. How to Secure the Rule of Law Securing the rule of law requires: ○ A well-ordered constitution to control power and protect liberty. ○ Key institutions like representative government, separation of powers, and an independent judiciary. Sellers highlights that achieving the rule of law depends on structures that constrain private interests and ensure public power serves the common good. While constitutional forms may vary across societies, the fundamental principles of separating laws from arbitrary power remain universal. 7. Some Practical Requirements Independent judiciary: Judges must have secure tenure and salaries to ensure impartial application of laws. Just laws: Legislation must aim to serve the public good, not private interests. The chapter stresses that equal laws, serving all impartially, distinguish rule of law governments (de jure) from arbitrary governments (de facto). Sellers emphasizes the role of representative government and checks and balances as necessary to create fair laws. 8. Exceptions to the Rule of Law Sellers examines whether some societies are not ready for the rule of law, as argued by thinkers like John Stuart Mill. While some rulers may justify despotism in the name of development, it remains problematic because: ○ Despotism is prone to abuse. ○ Benevolent rulers lack complete knowledge of citizens’ needs. The rule of law requires representative government, ensuring that laws are informed by society’s actual needs. However, unchecked majoritarian rule can also threaten the rule of law. 9. Conclusion Establishing the rule of law requires constant vigilance to separate law from arbitrary power. Key institutions include: ○ Representative government, ○ Separation of powers, ○ Independent judiciary. The greatest advance comes when judges secure independence from legislative and executive influence. The chapter concludes that while the rule of law is difficult to achieve, its absence is always evident. Without it, societies fall into oppression and injustice. Ultimately, the rule of law ensures impartial justice, protecting society from arbitrary power.