While the definition of the rule of law and the parameters of what the concept encompasses are still theoretically debated, the rule of law most notably entails, “The predominance that is absolute of an ordinary law over every citizen regardless of that citizen’s power”. (Black’s law online dictionary). Essentially, power should be exercised in a manner consistent with the law and the law should show certain characteristics.
The Rule of law is a concept exclusive to common law jurisdictions and therefore to find a suitable translation it is necessary to look to principles of law inherent in the jurisdiction of the target language. In Italian, the term stato di diritto is most closely aligned in its underlying protections to those of the rule of law as understood by the common law.
Stato di diritto – literally translated into English as a “state of law” – essentially establishes that the state is under the supreme rule of the law and that the law is to be interpreted by judges. The concept implies that actions by the state are compliant with the applicable laws: the state itself has to comply with laws in accordance with the constitution. Stato di diritto has both a formal interpretation and a material interpretation. Under the formal, it implies the separation of powers and the jurisdiction of judges to interpret the law, whereas the material implies that powers are to be interpreted in accordance with the contents of the law and specifically through the protection of fundamental rights enshrined in the Constitution. The ability of the judges under stato di diritto to interpret and apply the law provides the separation of powers that similarly reflect the common law idea of the rule of law. The largest difference is that the rule of law requires judges in the common law to abide to precedent. The rule of law requires that the law should have certainty, thereby binding judges to precedent. The binding nature of the common law on judges to follow decisions of higher courts is a concept that is not present in civil law jurisdictions. In civil law jurisdictions the courts are entrusted with ensuring that the laws, as enacted by Parliament, are adhered to. Nevertheless, the underlying protections and aim of the rule of law are the same protections inherent in stato di diritto, thereby providing a correct term in Italian to translate the rule of law.