citedLNations ACnE 187/3 Tenth Distr general United Nations Congress 14 December 1999 CM on the prevention of crime Original: english and the treatment of Offenders Vienna, 10-17 April 2000 Item 3 of the provisional agenda Promoting the rule of law and strengthening the criminal justice system Promoting the rule of law and strengthening the criminal justice system Working paper prepared by the secretariat A/CONF 187 99-90948(E)
* A/CONF.187/1. V.99-90948 (E) United Nations A/CONF.187/3 Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders Vienna, 10-17 April 2000 Distr.: General 14 December 1999 Original: English Item 3 of the provisional agenda* Promoting the rule of law and strengthening the criminal justice system Promoting the rule of law and strengthening the criminal justice system Working paper prepared by the Secretariat
A/CONF. 187/3 L. Introduction analyse in theory and even more difficult to develop in practice 1. The present paper is intended to inform and stimulate 3. The rule of law in criminal justice systems was discussion about the rule of law, with a focus on issues that largely overlooked in discussions about sustainable are important for the development and maintenance of economic development and was often addressed only effective criminal justice systems. It will be seen that there tangentially in discussions about the protection of human are differing concepts of the rule of law and that taken rights. The idea that rule of law reforms would generally broadly it covers a very wide range of legal and social make criminal justice systems actually work better, by issues. To permit discussion on a uniform basis, the paper making them both more effective as crime-control systems therefore begins with a discussion of the nature of the rule and more just and protective of human rights, has not f law and in particular those elements of greatest impor- figured prominently in the debate thus far. This tance for criminal justice. It then considers the significance prising, since the rule of law is arguably more important in of the rule of law as a goal of sustainable development and criminal matters than in many other areas of the law as a means of supporting the achievement of other "The legality ideal confronts its sternest tests in the development goals. Offences involving terrorism, corruption and organized crime raise unique problems for area of criminal justice. This is true for at least two the rule of law. and these are considered. transnational reasons: First, the implications of arbitrary exertion crime, which may or may not be committed by organized of state power are particularly somber here because criminal groups, also constitutes a new challenge to of the severity of the sanctions administrated by the conventional models of the rule of law because the rule of criminal law and the status-degrading potency of law is based on a traditional framework in which sovereign riminal proceedings. Second, the threat ofcrime and powers, including those to make, enforce and administer the outrage it produces tempt officials to perpetrate the law. are exercised at the national level. the advent of and the public to approve carelessness toward and new transportation and communication technologies sometimes disregard of the legality of their efforts at creates the potential for increases in transnational crime The reaction of the international community, and the 4. To this might be added another more fundamental challenges that it may face in the future are discussed in concern. The very nature of the criminal justice systems erms of the rule of law and sanctions makes them the ultimate instrument for turning the rule of law itself into a mechanism of repres al I. Background 2. Discussion of the rule of occupied criminologists Ill. Nature of the rule of law during much of the latter half of the twentieth century. It was seen as a remedy for human rights abuses and, for a 5. Perhaps the most important point that must be made at the outset of any discussion of this subject is that there and socialism was a battleground of the cold war. Towards is no universal agreement as to what the term"rule of law" the close of the century, the rule of law became a focus for actually means. Much of what follows is a matter of fairly development projects, which saw it as a means of suppor- broad consensus, but by no means unanimous agreement ting the implementation of economic and human rights The rule of law is a system of interrelated principles that reforms and, on occasion, as an end in itself. Practical extend widely into social, economic, cultural and other experience with such development eventually led to a more realistic assessment of the difficulties of developing the structures in present-day societies. For the purposes of rule of law and to the real ization that it is the rule oflaw discussion one must distinguish between those elements or principles which are cen tral to the rule of law and those practice, and not in theory, that matters. It also led to which are ancillary to it. At the same time, any such serious questions about the nature of the rule of law not xercise must to some degree be arbitrary: almost every only as a legal construct, but as a much broader framework element of those structures supports the rule of law or is of social values and cultural beliefs that are difficult to supported by it, or in many cases, both
A/CONF.187/3 2 I. Introduction 1. The present paper is intended to inform and stimulate discussion about the rule of law, with a focus on issues that are important for the development and maintenance of effective criminal justice systems. It will be seen that there are differing concepts of the rule of law and that taken broadly it covers a very wide range of legal and social issues. To permit discussion on a uniform basis, the paper therefore begins with a discussion of the nature of the rule of law and in particular those elements of greatest importance for criminal justice. It then considers the significance of the rule of law as a goal of sustainable development and as a means of supporting the achievement of other development goals. Offences involving terrorism, corruption and organized crime raise unique problems for the rule of law, and these are considered. Transnational crime, which may or may not be committed by organized criminal groups, also constitutes a new challenge to conventional models of the rule of law because the rule of law is based on a traditional framework in which sovereign powers, including those to make, enforce and administer the law, are exercised at the national level. The advent of new transportation and communication technologies creates the potential for increases in transnational crime. The reaction of the international community, and the challenges that it may face in the future, are discussed in terms of the rule of law. II. Background 2. Discussion of the rule of law occupied criminologists during much of the latter half of the twentieth century. It was seen as a remedy for human rights abuses and, for a time, the debate between the legalities of the rule of law and socialism was a battleground of the cold war. Towards the close of the century, the rule of law became a focus for development projects, which saw it as a means of supporting the implementation of economic and human rights reforms and, on occasion, as an end in itself. Practical experience with such development eventually led to a more realistic assessment of the difficulties of developing the rule of law and to the realization that it is the rule of law in practice, and not in theory, that matters. It also led to serious questions about the nature of the rule of law not only as a legal construct, but as a much broader framework of social values and cultural beliefs that are difficult to analyse in theory and even more difficult to develop in practice. 3. The rule of law in criminal justice systems was largely overlooked in discussions about sustainable economic development and was often addressed only tangentially in discussions about the protection of human rights. The idea that rule of law reforms would generally make criminal justice systems actually work better, by making them both more effective as crime-control systems and more just and protective of human rights, has not figured prominently in the debate thus far. This is surprising, since the rule of law is arguably more important in criminal matters than in many other areas of the law. “The legality ideal confronts its sternest tests in the area of criminal justice. This is true for at least two reasons: First, the implications of arbitrary exertions of state power are particularly somber here because of the severity of the sanctions administrated by the criminal law and the status-degrading potency of criminal proceedings. Second, the threat of crime and the outrage it produces tempt officials to perpetrate and the public to approve carelessness toward and sometimes disregard of the legality of their efforts at crime suppression.”1 4. To this might be added another more fundamental concern. The very nature of the criminal justice systems and sanctions makes them the ultimate instrument for turning the rule of law itself into a mechanism of repression for political, social, economic or other purposes. III. Nature of the rule of law 5. Perhaps the most important point that must be made at the outset of any discussion of this subject is that there is no universal agreement as to what the term “rule of law” actually means. Much of what follows is a matter of fairly broad consensus, but by no means unanimous agreement. The rule of law is a system of interrelated principles that extend widely into social, economic, cultural and other structures in present-day societies. For the purposes of discussion, one must distinguish between those elements or principles which are central to the rule of law and those which are ancillary to it. At the same time, any such exercise must to some degree be arbitrary: almost every element of those structures supports the rule of law or is supported by it, or in many cases, both
A/CONF. 187/3 6. This is particularly true of human rights issues. IV. Some elements or requirements of Commentaries are divided as to whether human rights individually or in general, ought to be considered elements the rule of law of the rule of law or something else that may be suppo by the rule of law but that are not essential to it. The A. The law must be comprehensive present paper resolves the issue by considering rights indi- vidually. Some, such as rights relating to access to counsel, 9. The essence of judicial decision-making is that it the courts and effective remedies, are directly essential to involves the application of legal rules and not other the rule of law. Others are not, although many do support less-tangible considerations to whatever facts are at hand the rule of law indirectly. Freedom of expression supports To replace purely ad hoc decision-making, the law must viable, legitimate and self-regulating structures to formulate public policy and develop legislation, for provide rules on which decisions can be based. The details example. It must be emphasized, however, that this is more must exist when called upon. Legal systems commonly a question of degree than of distinction, and the position incorporate legislative mechanisms that develop or adjust taken here should be regarded as the drawing of a line for laws to keep pace with social changes and judicial and purposes of discussion rather than as a fundamental tatement about the nature of the rule of law advisory mechanisms to interpret and apply general rules to specific situations. Underlying these are default rules 7. A second fundamental point is that discussions often that govern situations in which no other rule exists. In focus on elements of the rule of law to the point where the criminal justice systems, the principle nulla poena sine nature of the rule of law itself can be overlooked. The rule lege-that there be no criminal liability or punishment of law is a system of principles that relate to the legal unless the act committed constituted an offence in law governance of societies, but it is not itself primarily a legal when it occurred-is an example of this system In systems where it is well-developed, the rule of law is a much broader and more deeply rooted social and cultural structure. It effectively anchors and stabilizes B. The law must be clear, certain and legality, while maintaining a firm connection to social accessible development and cha ange. ensure ring that laws and legal practices keep pace. This has profound implications for 10. Criminal law must be sufficiently clear to guide both those seeking to develop the rule of law where it is absent, executive and judicial decision-making. It must also be if it has been absent for some time or never existed to understood by the general population, which is generally presumed to know it and expected to comply with it. The 8. The development of legal infrastructure is essential drafting itself may not be clear to the average person, but to the rule oflaw, but also essential, and far more difficult it must be clear and certain enough to form the basis of to develop, are social and cultural traditions of legitimacy, commentary by others, including professional lawyers and acceptance of legal authority and respect for law Building judges. Criminal justice measures can lead to the most new courts of law or law schools and training those who extreme of consequences for those accused of crimes, will work in them may take a few years, but the develop- which requires a high degree of certainty ment of truly solid traditions of legality is apt to be a 11. Most people do not read statutes. They understand process spread over several generations. What might be the laws that are relevant to their activities through com done over the shorter term is to develop social conditions mentaries and publications ranging from government and that will lead to the adoption of a rule of law tradition over professional gazettes to the documents of interest groups time. It is also possible to provide the infrastructure needed and the public media, and the viability of these in pro to make the rule of law both viable and preferable to other viding diverse, accurate and accessible information is an means of governance. One must, however, be realistic in important support structure for the rule of law in civil assessing goals and expectations societies. where more detailed or authoritative information is needed, professional legal counsel may be sought, and the availability and accessibility of counsel is also important, not only in proceedings but in providing general advice as well
A/CONF.187/3 3 6. This is particularly true of human rights issues. Commentaries are divided as to whether human rights, individually or in general, ought to be considered elements of the rule of law or something else that may be supported by the rule of law but that are not essential to it. The present paper resolves the issue by considering rights individually. Some, such as rights relating to access to counsel, the courts and effective remedies, are directly essential to the rule of law. Others are not, although many do support the rule of law indirectly. Freedom of expression supports viable, legitimate and self-regulating structures to formulate public policy and develop legislation, for example. It must be emphasized, however, that this is more a question of degree than of distinction, and the position taken here should be regarded as the drawing of a line for purposes of discussion rather than as a fundamental statement about the nature of the rule of law. 7. A second fundamental point is that discussions often focus on elements of the rule of law to the point where the nature of the rule of law itself can be overlooked. The rule of law is a system of principles that relate to the legal governance of societies, but it is not itself primarily a legal system. In systems where it is well-developed, the rule of law is a much broader and more deeply rooted social and cultural structure. It effectively anchors and stabilizes legality, while maintaining a firm connection to social development and change, ensuring that laws and legal practices keep pace. This has profound implications for those seeking to develop the rule of law where it is absent, if it has been absent for some time or never existed to begin with. 8. The development of legal infrastructure is essential to the rule of law, but also essential, and far more difficult to develop, are social and cultural traditions of legitimacy, acceptance of legal authority and respect for law. Building new courts of law or law schools and training those who will work in them may take a few years, but the development of truly solid traditions of legality is apt to be a process spread over several generations. What might be done over the shorter term is to develop social conditions that will lead to the adoption of a rule of law tradition over time. It is also possible to provide the infrastructure needed to make the rule of law both viable and preferable to other means of governance. One must, however, be realistic in assessing goals and expectations. IV. Some elements or requirements of the rule of law A. The law must be comprehensive 9. The essence of judicial decision-making is that it involves the application of legal rules and not other less-tangible considerations to whatever facts are at hand. To replace purely ad hoc decision-making, the law must provide rules on which decisions can be based. The details of rule-making may vary, but the basic rules themselves must exist when called upon. Legal systems commonly incorporate legislative mechanisms that develop or adjust laws to keep pace with social changes and judicial and advisory mechanisms to interpret and apply general rules to specific situations. Underlying these are default rules that govern situations in which no other rule exists. In criminal justice systems, the principle nulla poena sine lege—that there be no criminal liability or punishment unless the act committed constituted an offence in law when it occurred—is an example of this. B. The law must be clear, certain and accessible 10. Criminal law must be sufficiently clear to guide both executive and judicial decision-making. It must also be understood by the general population, which is generally presumed to know it and expected to comply with it. The drafting itself may not be clear to the average person, but it must be clear and certain enough to form the basis of commentary by others, including professional lawyers and judges. Criminal justice measures can lead to the most extreme of consequences for those accused of crimes, which requires a high degree of certainty. 11. Most people do not read statutes. They understand the laws that are relevant to their activities through commentaries and publications ranging from government and professional gazettes to the documents of interest groups and the public media, and the viability of these in providing diverse, accurate and accessible information is an important support structure for the rule of law in civil societies. Where more detailed or authoritative information is needed, professional legal counsel may be sought, and the availability and accessibility of counsel is also important, not only in proceedings but in providing general advice as well
A/CONF. 187/3 12. Accessibility is also a requirement for legislative and not only on the legitimacy of the rule itself, but also on the judicial proceedings. Openness and transparency in popular belief that those who apply or enforce it do so with legislative proceedings supports the popular legitimacy of fairness, consistency and transparency. This applies to a the legislation that results. The same is true for judicial broad class of public servants who apply legal rules in a proceedings in which precedents are set or law is made. wide range of circumstances, but it is particularly critical Transparency is also important to the integrity and the in the case of elements of criminal justice systems such as perceived integrity or legitimacy ofjudicial proceedings in law enforcement, prosecutors and the criminal courts. In general. This requires the existence of independent and this sense, criminal justice systems are not only supported competent commentators, who must be given access to the by the rule of law, but also support it in turn. Consider, for courts and legislative proceedings, and to media that can example, cases in which the most powerful members of be used to disseminate accurate information about them to society are suspected of crimes. The system relies on rule the general population of law elements such as equality and independence to ensure that they cannot use their power to escape liability At the same time, the ability of the system to deal effec- C. The law must be legitimate: consent and tively with such cases protects the rule of law from undue compliance influences, such as bribery and intimidation. More generally such cases, if successfully concluded, set legal 13. In any society, the rule of law depends on the fact and social precedents that can strengthen the rule of law that the majority of people confronted with legal rules, (d) Legitimacy of support structures. As noted with them, thereby keeping the private life, will comply above, the rule of law is rooted in other elements of the whether in official functions or cases of non-compliance social structure, from which it draws support and stability within manageable levels. This depends to a large degree The legitimacy of legalism itself, therefore, depends to on what has been described as the"legitimacy"of the law, some degree on the popular legitimacy of many of those which in turn depends on several key factors, including: structures as well. For example, the legitimacy of the law (a) Legislative legitimacy. There must be legiti- and judicial proceedings depends to a significant extent on macy on the part of the lawmakers or the law will not be the degree to which they are reported accurately by the respected In democratic systems, this takes the form ofthe media, which depends in turn on the perception that the political accountability afforded by periodic elections, but media are both competent and independent of the State and there may be other legitimizing factors as well. Individuals the proceedings themselves. Support structures from within may sometimes govern successfully because of their criminal justice systems are also important. The openness, personal popularity or religious authority, for example, transparency and effective governance of lawenforcement (b)Legitimacy of policy. Transparency and acces- prosecutorial, judicial and penal structures support not ity of the policy development and legislative process of the rule of law itself. In most societies criminal justice affected by a particular rule had some influence on its be greatly reinforced or badly damaged, depending creation increases the legitimacy of the rule itself. Even those who disagree with a law will usually comply if there whether those structures are seen as fair, independent and is the perception that it was arrived at after full and fair effective consideration of other options. a broader range of input through popular consultation, legislative study and open D. The law must balance stability and debate also tends to mitigate or exclude unnecessarily difficult or cumbersome rules. The open discussion of flexibility issues and options also serves to educate the population, 14. Rule of law elements such as accessibility and leading to better understanding, and hence greater com- pliance, with the new law legitimacy also depend to some degree on a satisfactory balance between stability and flexibility in both laws and the abstract, but in its application to everyday situations policy will be uncertain and laws will lack legitimacy and ordinary people. Compliance depends to a large degree Rules made by short-term Governments tend to be seen as
A/CONF.187/3 4 12. Accessibility is also a requirement for legislative and judicial proceedings. Openness and transparency in legislative proceedings supports the popular legitimacy of the legislation that results. The same is true for judicial proceedings in which precedents are set or law is made. Transparency is also important to the integrity and the perceived integrity or legitimacy of judicial proceedings in general. This requires the existence of independent and competent commentators, who must be given access to the courts and legislative proceedings, and to media that can be used to disseminate accurate information about them to the general population. C. The law must be legitimate: consent and compliance 13. In any society, the rule of law depends on the fact that the majority of people confronted with legal rules, whether in official functions or private life, will comply with them, thereby keeping the cases of non-compliance within manageable levels. This depends to a large degree on what has been described as the “legitimacy” of the law, which in turn depends on several key factors, including: (a) Legislative legitimacy. There must be legitimacy on the part of the lawmakers or the law will not be respected. In democratic systems, this takes the form of the political accountability afforded by periodic elections, but there may be other legitimizing factors as well. Individuals may sometimes govern successfully because of their personal popularity or religious authority, for example; (b) Legitimacy of policy. Transparency and accessibility of the policy development and legislative process is also needed for legitimacy. The perception that those affected by a particular rule had some influence on its creation increases the legitimacy of the rule itself. Even those who disagree with a law will usually comply if there is the perception that it was arrived at after full and fair consideration of other options. A broader range of input through popular consultation, legislative study and open debate also tends to mitigate or exclude unnecessarily difficult or cumbersome rules. The open discussion of issues and options also serves to educate the population, leading to better understanding, and hence greater compliance, with the new law; (c) Legitimacy of application. Law operates not in the abstract, but in its application to everyday situations and ordinary people. Compliance depends to a large degree not only on the legitimacy of the rule itself, but also on the popular belief that those who apply or enforce it do so with fairness, consistency and transparency. This applies to a broad class of public servants who apply legal rules in a wide range of circumstances, but it is particularly critical in the case of elements of criminal justice systems such as law enforcement, prosecutors and the criminal courts. In this sense, criminal justice systems are not only supported by the rule of law, but also support it in turn. Consider, for example, cases in which the most powerful members of society are suspected of crimes. The system relies on rule of law elements such as equality and independence to ensure that they cannot use their power to escape liability. At the same time, the ability of the system to deal effectively with such cases protects the rule of law from undue influences, such as bribery and intimidation. More generally such cases, if successfully concluded, set legal and social precedents that can strengthen the rule of law; (d) Legitimacy of support structures. As noted above, the rule of law is rooted in other elements of the social structure, from which it draws support and stability. The legitimacy of legalism itself, therefore, depends to some degree on the popular legitimacy of many of those structures as well. For example, the legitimacy of the law and judicial proceedings depends to a significant extent on the degree to which they are reported accurately by the media, which depends in turn on the perception that the media are both competent and independent of the State and the proceedings themselves. Support structures from within criminal justice systems are also important. The openness, transparency and effective governance of law enforcement, prosecutorial, judicial and penal structures support not only the credibility of those institutions, but the legitimacy of the rule of law itself. In most societies criminal justice matters have a very high public profile. The rule of law can be greatly reinforced or badly damaged, depending on whether those structures are seen as fair, independent and effective. D. The law must balance stability and flexibility 14. Rule of law elements such as accessibility and legitimacy also depend to some degree on a satisfactory balance between stability and flexibility in both laws and law-making. If Governments change too frequently, public policy will be uncertain and laws will lack legitimacy. Rules made by short-term Governments tend to be seen as
A/CONF. 187/3 driven by partisan politics rather than public policy, and would not necessarily be inconsistent with the rule of law those who disagree may choose not to comply if it seems provided that the discrimination was prescribed by law likely that the Government and its policies may not last. This can be contrasted with cases in which a law that is not Frequent changes also erode the ability of commentators to discriminatory is applied in a manner that doe provide informed assessments of the law and for members discriminate, which would not be consistent with the rule of the public to understand it. Too much stability in of law. Governments or laws. on the other hand. creates the impression that neither legislators nor legislation are still linked to the evolving needs of society This can lead to F. Institutional independence and the pressure for extreme forms of political change and a separation of powers widespread perception that the law is irrelevant. This can in turn lead Governments to use repressive measures to 17. The integrity of the rule of law and legal structures is compel compliance and populations to seek out non-legal commonly protected by distributing powers among dis- structures for governance, dispute settlement and other parate actors or agencies that can then act as controls on one another. This includes judicial independence and structures such as the legislative/executive/judicial separa- tion of powers proposed by Montesquieu and found in E. Equality before the law many modern constitutions. It also includes the separation of more mundane public administration into numerous 15. Originally, equality before the law meant that agencies, preventing any single centre of power from individuals and the State must be equal before the law. achieving dominance. The rule of law is itself a form of This remains an important principle, but modern concepts power dispersion because it sets up legal principles as a have expanded it to encompass the general equality of control on social, economic or other pressures in society everyone concerned with the law. What is important for the and vice versa rule of law is that everyone should be equal before the law, 18. The high degree of independence needed for judicial regardless of power, wealth, individual or corporate status functions makes them something of a special case and or other characteristics not directly relevant to the issues at hand In individual-State matters, the State and its officials warrants specific comment(see below), but it should be should be bound by their own laws, subject to the same borne in mind that judicial independence and other forms scrutiny and sanctions for non-compliance, and stand on an of power dispersal are interdependent. Truly independent equal footing with individuals in legal disputes between the judicial decisions and judge-made laws require inde two. The idea of general equality before the law has pendent judges, but also independent input into the process assumed greater importance in recent decades, as powerful from prosecutors, other lawyers and law enforcement non-State parties, ranging from multinational corporations agencies. The courts cannot deal effectively with cases if and interest groups to transnational organized-crime corruption or other undue influences on law enforcement groups, have emerged. Equality is essential tonsuring that distort evidence or argument once they are there. The legal determinations are made on the basis of legal rules as independence of lawyers and the media is also important opposed to the status of the parties involved. This is for other elements of the rule of law, notably equality in needed not only for basic fairness, but also to ensure the legal proceedings and access to the law through competent predictability of outcomes and independent advice 16. It is important to note that equality as a rule of law concept is much more narrowly drawn than its human 19. The independence of judges themselves involves not rights counterpart. In human rights terms, law is often seen only judicial employment, court and administrative prac- tices and discipline, but also more far-reaching matters remedies for various forms ofdiscrimination. Inrule oflaw such as judicial selection, training and, increasingly, terms, substantive equality can be limited by the law itself, periodic retraining to keep judges abreast of relevant lega and social developments. Reasons given for the higher provided that the other basic requirements of legality are degree of independence accorded Judges include the met. Laws that discriminate on criteria such as race, gender following or religion may infringe basic rights guarantees, but they
A/CONF.187/3 5 driven by partisan politics rather than public policy, and those who disagree may choose not to comply if it seems likely that the Government and its policies may not last. Frequent changes also erode the ability of commentators to provide informed assessments of the law and for members of the public to understand it. Too much stability in Governments or laws, on the other hand, creates the impression that neither legislators nor legislation are still linked to the evolving needs of society. This can lead to pressure for extreme forms of political change and a widespread perception that the law is irrelevant. This can in turn lead Governments to use repressive measures to compel compliance and populations to seek out non-legal structures for governance, dispute settlement and other matters. E. Equality before the law 15. Originally, equality before the law meant that individuals and the State must be equal before the law. This remains an important principle, but modern concepts have expanded it to encompass the general equality of everyone concerned with the law. What is important for the rule of law is that everyone should be equal before the law, regardless of power, wealth, individual or corporate status or other characteristics not directly relevant to the issues at hand. In individual-State matters, the State and its officials should be bound by their own laws, subject to the same scrutiny and sanctions for non-compliance, and stand on an equal footing with individuals in legal disputes between the two. The idea of general equality before the law has assumed greater importance in recent decades, as powerful non-State parties, ranging from multinational corporations and interest groups to transnational organized-crime groups, have emerged. Equality is essential to ensuring that legal determinations are made on the basis of legal rules as opposed to the status of the parties involved. This is needed not only for basic fairness, but also to ensure the predictability of outcomes. 16. It is important to note that equality as a rule of law concept is much more narrowly drawn than its human rights counterpart. In human rights terms, law is often seen as the means of achieving substantive equality or providing remedies for various forms of discrimination. In rule of law terms, substantive equality can be limited by the law itself, provided that the other basic requirements of legality are met. Laws that discriminate on criteria such as race, gender or religion may infringe basic rights guarantees, but they would not necessarily be inconsistent with the rule of law, provided that the discrimination was prescribed by law. This can be contrasted with cases in which a law that is not discriminatory is applied in a manner that does discriminate, which would not be consistent with the rule of law. F. Institutional independence and the separation of powers 17. The integrity of the rule of law and legal structures is commonly protected by distributing powers among disparate actors or agencies that can then act as controls on one another. This includes judicial independence and structures such as the legislative/executive/judicial separation of powers proposed by Montesquieu and found in many modern constitutions. It also includes the separation of more mundane public administration into numerous agencies, preventing any single centre of power from achieving dominance. The rule of law is itself a form of power dispersion because it sets up legal principles as a control on social, economic or other pressures in society and vice versa. 18. The high degree of independence needed for judicial functions makes them something of a special case and warrants specific comment (see below), but it should be borne in mind that judicial independence and other forms of power dispersal are interdependent. Truly independent judicial decisions and judge-made laws require independent judges, but also independent input into the process from prosecutors, other lawyers and law enforcement agencies. The courts cannot deal effectively with cases if corruption or other undue influences on law enforcement or prosecutors prevent them from coming into court or distort evidence or argument once they are there. The independence of lawyers and the media is also important for other elements of the rule of law, notably equality in legal proceedings and access to the law through competent and independent advice. 19. The independence of judges themselves involves not only judicial employment, court and administrative practices and discipline, but also more far-reaching matters such as judicial selection, training and, increasingly, periodic retraining to keep judges abreast of relevant legal and social developments. Reasons given for the higher degree of independence accorded judges include the following: