Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P47 doc

car one block away from the police station around that time, walked down the rampway to the basement garage of the police station. The guard at the basement entrance had momentar- ily left his post to stop traffic so that the poli ce convoy with Oswald could leave the building. Ruby walked into the garage, which was filled with police officers, reporters, and camera crews. As Oswald appeared, flanked by poli ce detectives, Ruby approached him with a .38- caliber gun and fatally shot him. Ruby was immediately arrested. As Ruby prepared for his mu rder trial, his attorney, Tom Howard, prepared a defense based on the theory that the killing was a crime of passion committed without malice or premeditation by an unstable man. If this defense had been successful, Ruby would have received a maximum of five years in prison under Texas law. Before trial, however, Ruby’s family discharged Howard and retained Melvin M. Belli, a well-known and controversial San Francisco attorney. Belli elected to present a defense of total insanity in the hope Ruby would be acquitted. Belli asserted that Ruby had experienced an epileptic seizure and had shot Oswald while under the influence of this impairment. The case against Ruby was substantial. After the shooting, Ruby had given statements to the police, one of which suggested premeditation. Medical authorities did not support Belli’s medical diagnosis of Ruby. On March 16, 1964, a jury convicted Ruby of premeditated murder, and he was sentenced to death. Ruby’s conviction was reversed by the Texas Court of Criminal Appeals in October 1966, but he died in prison of a blood clot, complicated by cancer, on January 3, 1967. Many questions surrounding Ruby’s motives and actions remain unanswered. The Kennedy assassination and the Oswald shooting were investigated by a presidential commission headed by Chief Justice EARL WARREN. The Warren Report, issued in 1964, concluded that the bullets that killed Kennedy had been fired by Oswald’s rifle and that there was no evidence that either Oswald or Ruby was par t of any conspiracy, domestic or international, to assas- sinate the president. Many people were unpersuaded by the Warren Report’s conclusion that Oswald acted alone. Since 1964 numerous books and theories have asserted that the Kennedy assassination was the result of a conspiracy. One theory proposed that ORGANIZED CRIME had killed Kennedy and that Ruby had underworld con- nections. In 1979 a committee of the U.S. House of Representatives reexamined the evidence from 1963 and concluded that there had p robably been two gunmen and that a conspiracy was likely. This committee noted that in the weeks p receding the assassination Ruby had made several phone calls to persons associated with organized c rime. Other com- mentators have discounted the phone calls, as they were made before Kennedy’s trip to Dallas and the route his motorcade would take were announced. FURTHER READINGS Dempsey, John Mark, ed. 2000. The Jack Ruby Trial Revisited: The Diary of Jury Foreman Max Causey Denton: Univ. of North Texas Press. Johnson, Scott P. 2007. “The Prosecution of Lee Harvey Oswald.” South Texas Law Review 48 (spring). Posner, Gerald. 1993. Case Closed: Lee Harvey Oswald and the Assassination of JFK. New York: Random House. RULE An established standard, guide, or regulation governing conduct, procedure, or action. The word rule has a wide range of meanings in the law, as in ordinary English. As a verb, it most commonly refers to the action of a court of law in settling a legal question. When a court issues a decision, the decision is called a ruling. As a noun, rule generally refers to either settled principles of SUBSTANTIVE LAW or procedural regulations used by courts to administer justice. One of the most basic concepts in the Anglo-American legal tradition is called the RULE OF LAW . The RULE OF LAW refers to a set of rules and procedures governing human and institu- tional behavior that are autonomous and possess their own logic. These rules are fundamental to society and provide the guides for all other rules that regulate behavior. The rule of law argues for the legitimacy of the legal system by claiming that all persons will be judged by a neutral and impartial authority and that no one will receive special treatment. The concept of DUE PROCESS OF LAW is an important component of the rule of law. Courts and legislatures produce substantive law in all areas of human behavior and social arrangement. Over time, certain guiding GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 448 RULE principles emerge that rise to the level of a rule. When this happens, it usually means that the courts have firmly established a standard for assessing an issue. The source of a rule may be a previous set of court decisions or a legislative act that clearly sets out how the law is to be interpreted. Substantive rules help guide attor- neys in giving advice to clients. For example, the RULE AGAINST PERPETUITIES governs the way in which property may be coveyed. Knowing this rule, a lawyer can draft a legal document that will not violate the rule. Courts of law have many procedural rules that determine how the judicial system will handle disputes. Courts have the authority, either by legislative act or by their own inherent power, to promulgate (issue) rules of proce- dure. State and federal courts have rules of criminal and CIVIL PROCEDURE that set out in great detail the requirements of every part y to a criminal or civil proceeding. RULES OF EVIDENCE provide guidelines for what a court may properly allow into evidence at a trial. Courts promulgate rules of professional conduct that govern the ethical behavior of attorneys. Other rules specify how many hours of CONTINUING LEGAL EDUCATION an attorney must attend to remain in good standing with the bar. Courts also issue rules on technology. For example, the highest co urt in a jurisdiction usually decides whether television cameras will be allowed in a courtroom and issues a rule to that effect. There are also rules of interpretation that guide courts in making their rulings. For example, the PLAIN-MEANING RULE is a general principle of statutory interpretation. If the meaning of the words in a writing (such as a statute, contract, or will) is clear, other evidence is inadmissible to change the meaning. The interpretation of criminal statutes is guided by the rule of lenity. A court will decline to interpret a CRIMINAL LAW so as to increase the penalty, unless it has clear evidence of legislative intent to do otherwise. Since the 1930s the growth in the number of government administrative agencies with rule- making authority has led to thousands of rules and regulations. The Federal Register is an official U.S. government publication that regu- larly prints proposed and final rules and regulations of government agencies. Rules that are currently in force appear in the Code of Federal Regulations. The INTERNAL REVENUE SER- VICE , for example, issues administrative rulings that interpret the INTERNAL REVENUE CODE. FURTHER READINGS Bix, Brian. 2009 Jurisprudence: Theory and Context. 5th ed. Durham, N.C.: Carolina Academic Press. Mootz, Francis J. III. 2009 On Philosophy in American Law. New York: Cambridge University Press. CROSS REFERENCES Administra tive Law; Common Law; Rule of Law. RULE AGAINST ACCUMULATIONS A principle that prohibits adding income or interest earned by a trust back into the principal of the fund beyond the time allowed by the RULE AGAINST PERPET UITIES . CROSS REFERENCE Rule against Perpetuities. RULE AGAINST PERPETUITIES Under the COMMON LAW, the principle that no interest in property is valid unless it vests not later than twenty-one years, plus the period of gesta- tion, after some life or lives in being which exist at the time of the creation of the interest. Thecourtsdevelopedtheruleduringthe seventeenth century in order to restrict a person’s power to control perpetually the ownership and possession of his or her property after death and to ensure the transferability of property. The rule includes the period of gestation to cover cases of posthumous birth. Vesting A property interest vests when it is given to a person in being (someone who is currently living) and is not subject to a condition precedent. For example, if Donald Smith transfers his real property to his son Howard for life and then to Howard’s children who are alive at the time of Howard’s death, the children’s interest is not vested. Their interest is subject to the condition precedent that they survive their father Howard. If Donald transfers his property to his son Howard for life, and then to Howard’s children Ann and Richard, the children’s interest is vested. Although the children’s right to possess and enjoy the property might be delayed for many years, the rule does not relate to the time when property vests in actual possession but only GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RULE AGAINST PERPETUITIES 449 when the property vests in interest. The interest that the children possess is known as a future interest. Under the rule, a future interest must vest within a certain period of time. This period is limited to the duration of a life or lives in being (the “measuring lives”) at the time the interest in the property is transferred, plus 21 years. The period of the rule can be extended by one or more gestation periods. For purposes of the rule against perpetuities, a person is in being at the time of conception if he or she is born thereafter. Therefore the measuring life, or lives, might be the life of a person who has been conceived at the time the instrument takes effect but who is born afterward. For example, a testator—one who makes a will—leaves prop- erty “to the descendants of Jones who are living 21 years after the death of my last surviving child.” Six months after his deat h, the testator’s wife gives birth to their only child. This child is the measuring life, and the descendants of Jones who are alive 21 years after the death of the testator’s child will take the property. The period of gestatio n can also occur at the end of the measuring life or lives. A person conceived before but born after the death of a measuring life is considered to be in being for purposes of the rule. For example, a testator leaves his estate to his grandchildren who attain the age of twenty-one. The testator ’s only child, William, is born six months after the testator’s death. William himself has only one child, Pamela, who is born six months after William’s death. The will provisions that leave the property to Pamela are valid, and she will inherit her grandfather’s esta te when she reaches 21. The 21 period must be added on after the deaths of the persons or person who are used as the measuring lives. The measuring lives, or life, are usually persons who are named in the instrument creating the future interest, such as a will or a trust. Frequently the person whose life is used as the measuring life also has a preced ing interest in the property, such as a person who is given life estate. A large number of persons can be used as measuring lives, as long as the date of the last survivor’s death can be learned without too much difficulty. For example, a bequest by a testator who used as measuring lives all of Queen Victoria’s lineal descendants living at the time of the testator’s death was upheld as valid. On the date of the testator’s death, 120 of the queen’s lineal descendants were alive. If the interest will not vest until after the expiration of the life or lives in being plus 21 years, or there is a possibility that the interest might not vest until after the expiration of such time, the transfer is void and fails completely. The following fact pattern is an example of a situation that would violate the rule. George Bennet owns a farm, and his son Glen and Glen’s wife, Susan, live on the farm and help George manage it. Glen and Susan are childless, but George wants grandchildren. To encourage them to have children, George promises that he will give Glen a life estate in the farm and leave the remainder to George’s grandc hildren. He executes a will devising the farm to Glen for life and then to Glen’s children when they reach the age of 25. George’s will creates the future interest, which takes effect at the time of his death. Glen’s is the measuring life—the life in being at the time the interest is created. Since it is possible for the vesting to occur more than 21 years after the deaths of Glen and Susan, the devise of the future interest to the grandchildren is void. For instance, one year after George’s death, Susan has a baby girl. Two years later, she has twin boys. Six months after the birth of the twin boys, both Susan and Glen are killed in an automobile accident. The interest in the farm will not vest in the three children within 21 years after their parent’s deaths. Wait and See Statutes Under the common-law rule, if there is a possibility that the future interest will not vest until after the expiration of the life or lives in being, plus 21 years, the interest is void. The determination is made at the time the future interest is created. In order to avoid the harshness of this rule, some states have enacted statutes providing that the validity of the interest is to be decided at the time the interest actually does vest, rather than at the time it is created. Under these statutes the courts “wait and see” if the interest does in fact vest within the period of the rule. If it does vest within the period of the life or lives in being plus 21 years, then the interest is valid. Under other more limited “wait and see” statutes, a decision is made at the time of the death of the life tenant or tenants. These statutes are also called second look statutes. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 450 RULE AGAINST PERPETUITIES FURTHER READINGS Dobris, Joel C. 2000. “The Death of the Rule against Perpetuities, or the RAP Has No Friends—An Essay.” Real Property, Probate and Trust Journal 35 (fall): 601–65. “Dynasty Trusts and the Rule against Perpetuities.” 2003. Harvard Law Review 116 (June): 2588–2609. Gray, John Chipman. 2003. The Rule against Perpetuities. Union, N.J.: Lawbook Exchange. CROSS REFERENCES Life in Being; Second Look Doctrine. RULE IN SHELLEY’S CASE An English common-law doctrine that provided that a conveyance that attempts to give a person a life estate, with a remainder to that person’s heirs, will instead give both the life estate and the remainder to the person, thus giving that person the land in fee simple absolute (full ownership without restriction). Although Wolfe v. Shelley, 1 Co. Rep. 93b, 76 Eng. Rep. 206 (C.P.), generally know n as Shelley’s Case, took place in 1581, the rule that made it famous had already been in existence for approximately 150 years. The rule was enacted to close a tax loophole that allowed people to circumvent an inheritance tax, known as a relief. Any person who received property by means of inheritance was required to pay the relief to the feudal lord. Attempting to save their clients money, scriveners (drafters of written instruments such as deeds and wills) came up with a plan to allow a person who would otherwise have been an heir to receive property by means of a conveyance rather than by direct inheritance. The judges quickly saw through this attempt to circumvent the tax law and adopted the rule to close the loophole. As stated in Shelley’s Case, the rule held that “when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, that always in such cases, ‘the heirs’ are words of limitation of estate, and not words of purchase” (statement of defendant’s counsel, probably SIR EDWARD COKE ). The effect of the rule was to frustrate the intent of an owner of real property who transferred her estate to another by gift or conveyance and, by the same instrument, gave a remainder to the heirs of the transferee. In that circumstance the rule woul d ignore the intention of the owner and give the transferee the estate in fee as oppos ed to a life estate. For example, in the conveyance “Owner of Black- acre conveys it to X for life, remainder to X’s heirs,” X would not just get a life estate as the owner desired; instead, due to the rule, X would receive both the life estate and the remainder (intended for X’s heirs) in fee simple absolute as the rule worked a merger of the life estate and the remainder. Consequently, the rule effectively changed the conveyance to “Owner to X and his heirs.” Even after the relief tax was abolished in 1660 by the Statute of Tenures (12 Ar. 2, ch. 24) scriveners were careful to draft documents so as to avoid application of the rule, which still survived even though the reason for its existence had disappeared. In 1770 William Murray, Lord Mansfield, the chief justice of the Court of King’s Bench declared that the rule was “a strange law” and eradicated it (Perrin v. Blake, 1 F. Hargrave, Collectanea Juridica 283 [K.B.]). Lord Mansfield was an innovative jurist and experienced great frustration with the feudal peculiarities that existed in English land law. Unlike many of his fellow jurists, he was deeply concerned with giving legal meaning to the intention of testators and owners of property. As a result of these dynamics, the Court of Exchequer Chamber reversed Lord Mansfield’s decision in Perrin and reinstated the Rule in Shelley’s Case in 1772, holding that the rule “was a RULE OF LAW, not a rule of construction; that is, it was explicitly recognized to be applicable regardless of intention.” Consequently, this ancient rule lived on until the growing desire to give effect to the owner’s intention could be stifled no longer, and Great Britain decisively and finally abolished the rule in the Law of Property Act in 1925 (15 & 16 Geo. 5, ch. 20, § 131). In the early twenty- first century, only a handful of states in the United States continue to give effect to the rule; the vast majority prefer to give effect to the intention behind the words used to transfer property. FURTHER READINGS Hoover, Valoria C. 1991. “Property Law: The Rule in Shelley’s Case Rears Its Ugly Head.” University of Dayton Law Review 17 (fall). Orth, John. 1989. “Requiem for the Rule in Shelley’s Case.” North Carolina Law Review 67 (March). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RULE IN SHELLEY’ S CASE 451 Reppy, William A., Jr. 1997. “Judicial Overkill in Applying the Rule in Shelley’s Case.” Notre Dame Law Review 73 (November). Smith, David. 2009. “Was There a Rule in Shelley’s Case?” The Journal of Legal History 30 (April). CROSS REFERENCES Feudalism; Mansfield, William Murray, First Earl of. RULE OF 78 A method of computing refunds of unearned finance charges on early payment of a loan so that the refund is proportional to the monthly unpaid balance, also known colloquially as the “sum of the digits method.” The rule of 78 can be disadvantageous to borrowers, and indeed it is illegal in many states. Since 1992 federal law has banned the use of this method for loans with terms longer than 61 months. Under 15 U.S.C. § 1615(b), federal law prohibits this method in mortgage refinan- cings and other consumer loans. The figure 78 is the sum of the digits of one through twelve—that is, the number of months in a one-year installment contract. On a one-year loan contract, in the first month, 12/78 of the interest is due in the first month, and then in the next month 11/78 is due, and then 10/78, descending each month through the end of the year. FURTHER READINGS Meier, Barry. 1992. “Paying Off a Loan Early Can Hurt.” New York Times (February 15). Slater, Jeffrey, Robert A. 2007. Practical Business Math Procedures. New York.: McGraw-Hill. RULE OF LAW The rule of law is rule according to law; rule under law; or rule according to a higher law. Rule of law is an ambiguous term that can have different meanings in different contexts. In one context the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context the term means rule under law. No branch of govern- ment is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems. Rule According to Law The rule of law requires the government to exercise its power in accordance with well- established and clearly written rules, regula- tions, and legal principles. A distinction is sometimes drawn between power, will, and force, on the one hand, and law, on the other. When a government official acts pursuant to an express provision of a written law, he acts within the rule of law. But when a government official acts without the IMPRIMATUR of any law, he or she does so by the sheer force of personal will and power. Under the rule of law, no person may be prosecuted for an act that is not punishable by law. When the government seeks to punish someone for an offense that was not deemed criminal at the time it was committed, the rule of law is violated because the government exceeds its legal authority to punish. The rule of law requires that government impose liability only insofar as the law will allow. Government exceeds its authority when a person is held to answer for an act that was legally permissible at the outset but was retroactively made illegal. This principle is reflected by the prohibition against EX POST FACTO LAWS in the U.S. Constitution. For similar reasons, the rule of law is abridged when the government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the per- sonal discretion of a government official, the less they are based on law. For example, the DUE PROCESS CLAUSES of the Fifth and Fourteenth Amendments require that statutory provisions be sufficiently definite to prevent ARBITRARY or discriminatory enforce- ment by a PROSECUTOR. Government officials must not be given unfettered discretion to prosecute individuals for violating a law that is so vague or of such broad applicability that evenhanded administration is not possible. Thus, a Florida law that prohibited VAGRANCY was held VOID FOR VAGUENESS because it was so GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 452 RULE OF 78 generally worded that it encouraged erratic prosecutions and made possible the punishment of normally innocuous behavior (Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 [1972]). Well-established and clearly defined laws allow individuals, businesses, and other entities to govern their behavior accordingly (United States v. E.C. Investments, Inc., 77 F.3d 327 [9th Cir. 1996]). Before the government may impose civil or criminal liability, a law must be written with sufficient precision and clarity that a person of ordinary intelligence will know that certain conduct is forbidden. When a court is asked to shut down a paint factory that is emitting pollutants at an illegal rate, for example, the rule of law requires the govern- ment to demonstrate that the factory owner failed to operate the business in accordance with publicly known environmental standards. Rule under Law The rule of law also requires the government to exercise its authority under the law. This requirement is sometimes explai ned with the phrase “no one is above the law.” During the seventeenth century, however, the English monarch was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Com mons and ignore rulings made by the House of Lords. In the eighteenth century, absolute sovereignty was transferred from the British monarchy to Parliament, an event that was not lost on the colonists who precipitated the American Revo- lution and created the U.S. Constitution. Under the Constitution, no single branch of government in the United States is given unlimited power. The authority granted to one branch of government is limited by the authority granted to the coordinate branches and by the BILL OF RIGHTS, federal statutory provisions, and historical practice. The power of any single branch of governme nt is similarly restrained at the state level. During his second term, President RICHARD M . NIXON tried to place the EXECUTIVE BRANCH of the federal government beyond the reach of legal process. When served with a SUBPOENA ordering him to produce a series of tapes that were anticipated to link him to the WATERGATE CONSPIRACY and cover-up, Nixon refused to comply, asserting that the confidentiality of those tapes was protected from disclosure by an absolute and unqualified EXECUTIVE PRIVILEGE.In UNITED STATES V. NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Supreme Court disagreed, compelling the president to hand over the tapes because the Constitution forbids any branch of government from unilat- erally thwarting the legitimate ends of a criminal investigation. Members of the state and federal judiciary face a slightly different problem when it comes to the rule of law. Each day judges are asked to interpret and apply legal principles that defy clear exposition. Terms such as “due process,” “reasonable care,” and “undue influence” are not self-defining. Nor do judges always agree about how these terms should be defined, interpreted, or applied. When judges issue controversial decisions, they are often accused of deciding cases in accordance with their own personal beliefs, be they political, religious, or philosophical, rather than in accordance with the law. Scholars have spent centuries examining this issue. Some believe that because the law is written in such indefinite and ambiguous terms, all judicial decisions will inevitably reflect the personal predilections of the presiding judge. Other scholars assert that most laws can be interpreted in a neutral, objective, and apolitical fashion even though all judges may not agree on the appropriate interpretation. In either case the rule of law is better served when judges keep an open mind to alternative readings of The rule of law requiring government to exercise its authority under the law justified the Supreme Court’s decision ordering President Nixon to comply with a subpoena and turn over tapes of White House conversations to a congressional impeachment probe. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION RULE OF LAW 453 constitutional, statutory, and common-law principles. Otherwise, courts run the risk of prejudging certain cases in light of their personal philosophy. Rule According to Higher Law A conundrum is presented when the govern- ment acts in strict accordance with well- established and clearly defined legal rules and still produces a result that many observers consider unfair or unjust. Before the Civil War, for example, African Americans were systemat- ically deprived of their freedom by carefully written codes that prescribed the rules and regulations governing master and slave. Even though these slave codes were often detailed, unambiguous, and made known to the public, government enforcement of them produced negative results. Do such repugnant laws comport with the rule of law? The answer to this question depends on when and where it is asked. In some countries the political leaders assert that the rule of law has no substantive content. These leaders argue that a government may deprive its citizens of fundamenta l liberties so long as it does so pursuant to a duly enacted law. At the NUREMBERG TRIALS, some of the political, military, and industrial leaders of Nazi Germany unsuccessfully advanced this argument as a defense to Allied charges that they had committed abominable crimes against European Jews and other minorities during WORLD WAR II. In other countries the political leaders assert that all written laws must conform with universal principles of morality, fairness, and justice. These leaders argue that as a necessary corollary to the axiom that “no one is above the law,” the rule of law requires that the govern- ment treat all persons equally under the law. Yet the right to equal treatment is eviscerated when the government categorically denies a minimal level of respect, dignity, and autonomy to a single class of individuals. These unwritten principles of equality, autonomy, dignity, and respect are said to transcend ordinary written laws that are enacted by government. Some- times known as NATURAL LAW or higher law theory, such unwritten and universal principles were invoked by the Allied powers during the Nuremberg trials to overcome the defense asserted by the Nazi leaders. The rule of law is a concept explain in classical time. In ancient Greece ARISTOTLE wrote that “law should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign in only those matters which law is unable, owing to the difficulty of framing general rules for all contingencies.” In ancient Rome the CORPUS JURIS CIVILIS established a complex body of procedural and substantive rules, reflecting a strong commitment to the belief that law, not the arbitrary will of an emperor, is the appropriate vehicle for dispute resolution. In 1215 MAGNA CARTA reined in the corrupt and whim sical rule of King John by declaring that government should not proceed except in accordance with the LAW OF THE LAND. During the thirteenth century, Thomas Aquinas argued that the rule of law represents the natural order of God as ascertained through divine inspiration and human reason. In the seventeenth century, the English jurist SIR EDWARD COKE asserted that the “king ought to be under no man, but under God and the law.” With regard to the legislative power in England, Coke said that “when an act of Parliament is against common right and reason, or repug- nant, or impossible to be performed, the COMMON LAW will control it, and ADJUDGE such act to be void.” In the United States, ALEXANDER HAMILTON applied the rule of law to the judiciary when he arg ued in The Federalist, no. 78, that judges “have neither Force nor Will, but merely judgment.” Despite its ancient history, the rule of law was not celebrated in all quarters. The nineteenth-century English philos opher JEREMY BENTHAM described the rule of law as “nonsense on stilts.” The twentieth century saw its share of political leaders who oppressed persons or groups without warning or reason, governing as if no such thing as the rule of law existed. For many people around the world, the rule of law is essential to freedom. Rule of Law in International Law The rule of law has application at the interna- tional level. For instance, a group of 185 prominent judges, lawyers, and law professors representing 53 nations met in New Delhi and approved the rule of law as a fundamental principle. Under this doctrine, the rule of law requires that nations recognize certain funda- mental rights and freedoms, that nations GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 454 RULE OF LAW maintain independent judiciaries, and that nations maintain cultural, economic, and social conditions that respect human dignity. In 2005 leaders at the UNITED NATIONS World Summit adopted an international “responsibil- ity to protect.” Under the principles approved at this summit, a nation should allow other countries to intervene in internal affairs when a nation is unable or unwilling to protect its own people from GENOCIDE, crimes against humanity, ethnic cleansing, and other mass atrocities. Although INTERNATIONAL LAW recognizes that sovereignty of nations, this responsibility to protect is considered an actual obligation on governments that can be enforced through international bodies, such as the United Nations. FURTHER READINGS Cass, Ronald A. 2001. The Rule of Law in America. Baltimore, MD: Johns Hopkins Univ. Press. Chesterman, Simon. 2009. “Unaccountable? The United Nations, Emergency Powers, and the Rule of Law.” Vanderbilt Journal of Transnational Law (November). Culver, Keith, ed. 1999. Readings in the Philosophy of Law. Buffalo, NY: Broadview Press. Dimock, Susan. 2007. Classic Readings and Cases in the Philosophy of Law. New York: Pearson Longman. Gutierrez, Renaldy J. 2009. “Democracy and the Rule of Law: Myth or Reality.” Duquesne Law Review. Fall. Hamilton, Alexander, James Madison, and John Jay. 1787– 1788. The Federalist Papers. Reprint, edited by Gary Wills. New York: Bantam Books, 1988. Komesar, Neil K. 2001. Law’s Limits: The Rule of Law and the Supply and Demand of Rights. New York: Cam- bridge Univ. Press. Michener, Roger, ed. 1995. The Balance of Freedom: Political Economy, Law, and Learning. New York: Paragon House. Pilon, Roger. 2000. The Rule of Law in the Wake of Clinton. Washington, D.C.: Cato Institute. Scalia, Antonin. 1989. “The Rule of Law as a Law of Rules.” University of Chicago Law Review 56. Sirica, John. J. 1979. To Set the Record Straight: The Break-In, the Tapes, the Conspirators, the Pardon. New York: Norton. Smith, Steven. 1995. “Nonsense and Natural Law.” Southern California Interdisciplinary Law Journal 4. Stoner, James. 1992. Common Law and Liberal Theory. Lawrence: Univ. Press of Kansas. Wood, Diane P. 2003. “The Rule of Law in Times of Stress.” University of Chicago Law Review 70. CROSS REFERENCES Discretion in Decision Making; Due Process of Law; International Law; Judi cial Review; Jurisprudence; Moral Law; Nuremberg Trials; Rule in Shelley’s Case; Stare Decisis. RULES OF DECISION ACT The Rules of Decision Act, (28 U.S.C.A. § 1652 [1948]) provides that where the Constitution, treaties, or acts of Congress are inapplicable, the law of the state in which the federal court is sitting should apply to civil actions. First enacted in 1789, the act is designed to discourage forum-shopping and to avoid the unfair administration of laws in cases heard by federal courts because of the DIVERSITY OF CITIZENSHIP of the parties. The landmark decision in ERIE RAILROAD CO. V. TOMPKINS, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), interpreted the Rules of Decision Act to include not only state statutes, but also controlling judicial decisions or state COMMON LAW as constituting the laws of the state. Erie overruled SWIFT V. TYSON, 41 U.S. (16 Pet.) 1, 10 L. Ed. 865 (1842), which construed the Rules of Decision Act as not requiring federal courts to apply state common law in diversity cases. RULES OF WAR A body of customs, practices, usages, conventions, protocols, treaties, laws, and other norms that govern the commencement, conduct, and termi- nation of hostilities between belligerent states or parties. Frequently violated and sometimes ridiculed, the rules of war have evolved over centuries. They distinguish nations whose armed forces respect some minimal standard of human decency from terrorists, marauders, and other outlaws who use illegal and unrestricted methods of warfare to achieve political, economic, or military objectives. Origins and Development The modern rules of war trace their origins to the chivalric practices of medieval Europe. Feudal knights were bound by the law of chivalry, a customary code of conduct that could be enforced in local courts throughout western Europe by a military commander of any nation. Premised on notions of justice and fairness, the law of chivalry gave birth to the distinction between soldier and civilian and the idea that women, children, and older persons should be shielded from the bloody fields of combat. The Roman Catholic Church also influenced the development of these rules, differentiating between just and unjust wars and denouncing certain weapons as odious to God. CODIFICATION of the rules of warfare began in the nineteenth century. In 1862 President GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RULES OF WAR 455 ABRAHAM LINCOLN commissioned Francis Lieber to draft a code of regulations summarizing the laws and usages of war. A year later, Lieber submitted a draft that the EXECUTIVE BRANCH promulgated as General Orders No. 1, entitled Instructions for the Government of Armies of the United States in the Field. Known as the Lieber code, this systematic articulation of the rules of war remained the official pronounce- ment of the U.S. Army for more than a half a century. It addressed the concept of military necessity, detailed the rights of prisoners, non- combatants, and spies, and discussed the use of poisons, unnecessary violence, and cruelty. In 1864 the codification movement took on an international flavor when 12 nations signed a Convention for the Amelioration of the Condi- tion of the Wounded in Armies in the Field, 129 Consol. T.S. 361, the first of a series of Red Cross initiatives for this purpose. In 1899 the United States, Mexico, Japan, Persia (now Iran), Siam (now Thailand), and 19 other nations, including all major European powers, signed a Convention with Respect to the Laws and Customs of War, 187 Consol. T.S. 429, an initiative that followed the broad outlines of the Lieber code and also addressed the relationship between an occupying power and no ncombat- ant civilian inhabitants. In 1914 the Lieber code was replaced by an army manual entitled The Law of Land Warfare, which has continued to be enforced in the first decade of the 2000s. Codification of the international rules governing land, sea, and air warfare accelerated following the conclusions of World Wars I and II, the KOREAN WAR, the VIETNAM WAR, and the many other hostilities that took place during the twentieth century. In addition to building upon the principles previously established, this period witnessed the creation of several new concepts, including certain categories of WAR CRIMES, such as crimes against peace and crimes against humanity. Crimes against peace are committed by persons who plan or wage aggressive wars. Crimes against humanity are committed by persons who knowingly participate in the DEPORTATION,en- slavement, persecution, or programmatic exter- mination of certain segments of society during times of war. Soldiers, military leaders, political officials, members of the judiciary, industrialists, and civilians are all subject to prosecution for violating any of these rules of war. Leaders and officials who wage aggressive war, disregard the territorial or political inde- pendence of another state, or violate the express terms of a peace settlement may be prosecuted as war criminals under the UNITED NATIONS Charter. They may also be prosecuted under the Nuremberg principles, derived from the NUREMBERG TRIALS after WORLD WAR II in which the Allied powers tried 24 leading Nazis for an assortment of war crimes, including crimes against peace and crimes against humanity. The Allies later prosec uted more than a hundred German civilians, including industrialists, doc- tors, and judges, who were enlisted by the Nazis to further their system of terror. War, Terrorism, and Subversion The rules of war do not apply to every act of hostility against an established government. Openly declared wars between sovereign states clearly implicate the rules of war. When the belligerents do not issue formal declarations of war, the legal status of a military conflict becomes murky. Isolated acts of TERRORISM or subversion, however, neither constitute acts of war nor create a state of war. Such acts are normally punishable under the criminal laws of the country in which they are perpetrated. Wider internal disturbances within the territorial borders of a country are more difficult to classify. When such disturbances begin, the ruling government is apt to classify them as riots or rebellions, while those who cause the disturbances are likely to classify them as acts of civil war. INTERNATIONAL LAW provides no definitive classification for such hostilities. But subversive groups that acquire sustained control over substantial territory and win measurable domestic support are more likely to receive the benefit of the rules governing warfare than are small bands of insurgents whose seditious efforts are stifled and repelled. Even when a state of war indisputably exists, the rules of war do not apply to all combatants. Regular land, air, and naval forces are typically governed by the rules of warfare. Irregular armed forces, such as guerrillas and other insurgents, are governed by these rules only when they carry their weapons openly, wear uniforms clearly displaying a recognizable emblem or insignia, conduct their operations in accordance with the laws of war, and are commanded by a superior who is responsible for subordinates. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 456 RULES OF WAR The point of these rules is not only to distinguish combatants from noncombatants but to distinguish conventional soldiers from hired assassins, spies, and mercenaries who circumvent the customs of war in order to accomplish an end that could not be achieved by regular armed forces. Because assassins, spies, and mercenaries do not comply with the rules of war, their captors need not either. Similarly, combatants who attempt to flout the rules of war by disguising themselves in civilian clothing or enemy uniforms may be treated as ordinary criminals. They may also be treated as “enemy” or “unlawful” combatants, a kind of purgatory between civilian status and prisoner-of-war- status. In response to the SEPTEMBER 11TH ATTACKS in 2001, the United States launched a WAR ON TERRORISM , which included a specific military operation against the Taliban government in Afghanistan and member s of the al Qaeda terrorist organization condu cting operations there. During that conflict, the U.S. military captured thousands of Taliban and al Qaeda forces, hundreds of whom were allegedly not complying with the rules of war, failing to wear uniforms with insignia clearly displayed, failing to carry their weapons openly, and failing to organize themselves in units subject to a hierarchical chain of command. The United States transported approxi- mately 650 of the captured combatants to Camp X-Ray at the naval base in Guantanamo Bay, Cuba, where they were held as “enemy” or “unlawful” combatants for the duration of the war against terrorism. President GEORGE W. BUSH issued a series of executive orders that formally denied the Guantanamo detainees prisoner-of- war-status and created military tribunals or commissions to try them for possible war crimes. The Guantanamo Bay detentions led to LITIGATION in U.S. courts. In Hamdan v. Rumsfeld, 548 U.S. 557, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006), the U.S. Supreme Court ruled that the military commissions established by the Bush administration to try detainees at Guantanamo Bay violated both the Geneva Convention and the UNIFORM CODE OF MILITARY JUSTICE . Congress responded to the decision in Hamdan by enacting the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, which authorized these commissions. However, the Court in Boumediene v. Bush, 553 U.S. ___, 128 S. Ct. 2229 (2008) ruled that the act was unconstitutional because it sus- pended the PRISONERS’ RIGHTS to HABEAS CORPUS. Prisoners of War The distinctions among an ordinary criminal, an ENEMY COMBATANT, and a prisoner of war are important. An ordinary criminal may be detained, prosecuted, and punished in accor- dance with the domestic criminal laws of the country in which the crime is committed. An enemy combatant may be detained and interro- gated on foreign soil while hostilities are ongoing, without the benefit OF COUNSEL , the right to file a HABEAS CORPUS petition, or other fundamental liberties afforded by the U.S. Constitution or international law. A conven- tional soldier who is captured by the enemy must be humanely treated in accorda nce with the international rules of war. Under these rules prisoners of war are required to give their captors only enough information for identifica- tion, such as name, rank, serial number, and date of birth. According to the rules, captors may not torture prisoners to extract information from them or subject prisoners to punishment without first complying with specific legal procedures. Under the rules of war, prisoners of war may not be punished for wrongs committed by the armed forces to which they belong, and medical and scientific experiments upon pris- oners are forbidden. Captors must provide prisoners with sufficient food and beverages to maintain good health, and adequate standards of clothing, housing, sanitation, and hygiene are prescribed. To encourage accountability, cap- tors are required to disclose the names of U.S. Army medics treat a wounded Iraqi officer in April 2003. The rules of war require captors to provide sick and wounded soldiers with medical treatment. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION RULES OF WAR 457 . group of 185 prominent judges, lawyers, and law professors representing 53 nations met in New Delhi and approved the rule of law as a fundamental principle. Under this doctrine, the rule of law requires. President GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RULES OF WAR 455 ABRAHAM LINCOLN commissioned Francis Lieber to draft a code of regulations summarizing the laws and usages of war. A. accordance with the laws of war, and are commanded by a superior who is responsible for subordinates. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 456 RULES OF WAR The point of these rules is