The expression “rule of law” was first used in the 17th century in connection with freedom of religion or belief. This connection is still crucial today.
by Massimo Introvigne*
*A paper presented at the 2024 Judicial Day Forum “Review and Vision of Judicial Independence: The Tai Ji Men Case,” National Taiwan University, Taipei, January 9, 2024.
An article already published in Bitter Winter on January 10th, 2024.
Taiwan’s Judicial Day 2024 commemorates the anniversary of the fateful date of January 11, 1943, when the Republic of China (R.O.C.) entered into a new treaty with the United States and the United Kingdom, making R.O.C.’s judicial system completely independent from any foreign jurisdiction. It is a day when Taiwanese proudly reflect on the rule of law.
It is interesting to note that the idea of the “rule of law” first emerged in connection with freedom of religion. The first known use of the expression “rule of law” was by a Church of Scotland minister, Samuel Rutherford, in 1644. Scotland had a Presbyterian church with a Calvinist theology, which was very different from the Anglican doctrine and organization of the Church of England.
King Charles I, to better control religion in the United Kingdom, tried to merge the Church of England and the Kirk, as the Church of Scotland was called. In practice, this merger meant that the Church of Scotland would be compelled to accept Anglican ideas and practices foreign to its tradition. The King’s project generated widespread opposition in Scotland, where a National Covenant was signed in 1638 to defend the freedom of the Kirk to define its own theology and organization. In time, the confrontation escalated from ideological to military and inaugurated the time of civil wars in the United Kingdom.
A prominent exponent of the National League, Rutherford coined the expression “rule of law” against King Charles’ motto “rex lex,” meaning “the King is the law.” Rutherford wanted to replace it with “lex rex,” meaning the law is the real king of the country and even King Charles should respect its rule.
Although the “rule of law” was an admirable formula, as many other great human ideas, including freedom and democracy, it was born under the cloud of ambiguity. While Rutherford advocated religious liberty for his own Kirk, he was not prepared to grant it to others, particularly to Roman Catholics. He even wrote a book called “A Free Disputation Against Pretended Liberty of Conscience” (1649), which became notorious as an apology for the persecution of Catholics and others Rutherford regarded as heretics.
Since the birth of the formula, there was thus a tension between theory and practice of the rule of law. Some, in this case Roman Catholics, were excluded by its scope. And how the rule of law was applied depended on the local authorities and bureaucrats.
Today, we acknowledge our debt to Rutherford for his beautiful formula, “rule of law,” but we disagree with his idea that heretics should not benefit from it. We understand that one man’s heresy is another man’s truth, and agree that disputes between religions should not be decided by the state. The rule of law should protects everybody, or it protects nobody.
We also know that instituting an independent judiciary in the Republic of China in 1943 did not really guarantee the respect of the rule of law in Taiwan after the R.O.C. government moved here. Those who disagreed from the government were persecuted during the White Terror and the Martial Law periods. Even after the Martial Law was lifted in 1987, the rule of law was not immediately and totally guaranteed, nor was freedom of religion or belief, as evidenced by the 1996 crackdown on religious and spiritual movements that had not supported the ruling party in the presidential elections of 1996, including Tai Ji Men. What is more, even after 1996 tax and other forms of harassment of spiritual minorities continued, as demonstrated by the fact that the Tai Ji Men case has not been solved to this very day.
As we reflect, on Taiwan’s Judicial Day, on the rule of law, we remember that since the expression was coined in the 17th century, it was connected with freedom of religion or belief, although this idea was not fully developed at the time. Today, we should repeat and affirm that there is no rule of law without respect for religious and spiritual minorities.
While it is surely appreciable that no new serious case of violation of freedom of religion or belief has emerged in Taiwan in the last few years, this is not enough to conclude that the rule of law and religious liberty are fully respected. Transitional justice dictates that old cases should be rectified too. It is not too late, and it will never be too early, to restore justice for Tai Ji Men.