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Santa Clara Law Review



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This essay traces the history and development of the concept of the Rule of Law from ancient times through the present. It describes the elements of the Rule of Law and its importance to the protection of human rights in a variety of contexts, including under domestic and international law. From ancient Greece and Rome to the Enlightenment, and from the American and French Revolutions to modern times, the Rule of Law has played a key role in societies around the world. The essay discusses definitions of the Rule of Law, its origins, and its development over time, including in Europe, America’s founding period, and the post–World War II era. In particular, the essay discusses the intellectual contributions of historical figures such as the Italian criminal-law theorist Cesare Beccaria, the French jurist, Baron de Montesquieu, and American revolutionaries who played major roles in laying the now centuries-old foundation for the development of the modern-day Rule of Law concept (i.e., in drafting early American constitutions and laws, including the U.S. Constitution and its Bill of Rights). The essay explores a wide range of topics, from the creation of the United Nations and the ratification of international conventions and human rights treaties, to the adoption of South Africa’s post–apartheid constitution, to Donald Trump’s continuous and systematic assault on the Rule of Law, human rights, and democratic institutions and norms. The essay also highlights the Rule of Law’s symbiotic relationship to the protection of fundamental human rights such as the rights to equality, to vote, and to be free from discrimination, cruelty and torture. Arguing that various Trump Administration acts and policies (e.g., separating children from their parents at the U.S.-Mexico border and the death penalty’s use) and the outrageous and brazen efforts of Donald Trump and his campaign and allies to discriminate against and disenfranchise voters violate core Rule of Law principles, the essay concludes by emphasizing the Rule of Law’s continuing and critical importance to the protection of civil liberties and fundamental human rights in the twenty-first century.

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