4 Elements of the Rule of Law

4 Elements of the Rule of Law

Rule of law” means first and foremost “protection of property rights”. [90] Economist F. A. Hayek analyzed how the rule of law could benefit the free market. Hayek suggested that people subject to the rule of law would be able to make smart investments and future plans with some confidence in a successful return on investment, when he said: “Under the rule of law, the government is prevented from reducing individual efforts through ad hoc measures. Under the known rules of the game, individuals are free to pursue their personal goals and desires, knowing that government powers are not intentionally being used to thwart their efforts. [91] Finally, the “rule of law” can be used as a formula to express the fact that here [in England] the law of the Constitution, the rules that are of course part of a constitutional code abroad, are not the source but the consequence of the rights of the individual as defined and applied by the courts; Thus, the Constitution is the result of the common law of the country. [10] A resource for leading organizations, model programs, rule of law information, and more. The old concept of the rule of law can be distinguished from the rule of law, according to political science professor Li Shuguang: “The difference. is that the law is of paramount importance in the context of the rule of law and can serve as a control against abuses of power.

According to the law, the law is a mere tool for a government that oppresses legalistically. [41] This principle, which is contained in the United Nations. The Secretary-General`s definition of the rule of law suggests that a democratic form of government is a prerequisite for the rule of law. [56] Lord Bingham, in his Treaty on the Rule of Law in the United Kingdom, also suggests that this principle is part of the rule of law. [57] There is no general agreement that the rule of law exists only in democratic societies. [58] It is perhaps theoretically possible that a benevolent dictatorship encompasses most, if not all, of the other elements of the rule of law and does not have a democratic form of government. Although theoretically possible, it is difficult, if not impossible, to find an example of such an anti-democratic and benevolent dictatorship within the framework of the rule of law. A thoughtful scholar who writes about the rule of law argued that the maintenance of law and order and the protection of persons and property should be one of the principles of the rule of law. Rachel Kleinfeld Belton wrote: Various organizations are committed to promoting the rule of law.

The General Assembly has considered the rule of law to be an agenda item since 1992, with renewed interest since 2006, and has adopted resolutions at its last three sessions. [71] The Security Council has held a number of thematic debates on the rule of law[72] and adopted resolutions highlighting the importance of these issues in the context of women, peace and security[73], children in armed conflict[74] and the protection of civilians in armed conflict. [75] The Peacebuilding Commission has also regularly addressed rule of law issues with respect to the countries on the agenda. [76] The Vienna Declaration and Programme of Action also call for the integration of the rule of law into human rights education. [77] In addition, Sustainable Development Goal 16, which is part of the 2030 Agenda, aims to promote the rule of law at the national and international levels. [78] At the same time, there is concern about the mentality fostered by the overemphasis on the rule of law. In its most extreme form, the rule of law can lead to the ability to think independently of public servants (e.g., judges: see Cover 1975) or ordinary members of a community, making them anxious about uncertainty and distrust of their own judgments or the individual judgments of others (see Henderson 1990). Sometimes it is important, in the interest of clear and courageous moral judgment, not to exaggerate the importance of something being required by law. Other concerns about the mentality fostered by the rule of law include concerns about legalism and the tendency to formalize or overload relationships that are designed to be healthier in more informal terms. It`s not just about legalizing the personal domain; It is also a question of understanding, for example, the damage that can be caused to the relationships between public servants (such as social workers) and vulnerable clients by replacing the introduction of rigid rules to replace relatively informal professional standards (Simon, 1983). As we saw in the hayek discussion (1973), the other side of the coin is an insult to legislation, precisely because its adoption seems to represent obviously and undeniably the rule of powerful civil servants. Legislation is a matter of will.

The legislative process produces the law simply by asking a group of people in an assembly to decide that a particular law should be produced. And this is precisely what men – powerful politicians – are doing in whose power the rule of law is supposed to be an alternative. Generality is an important feature of legality, which is reflected in the long-standing constitutional aversion to Attainder`s bills. Of course, the law cannot function without certain orders, but as Raz (1979 [1977]: 213) points out, the general public`s requirement is generally understood to mean that “the enactment of certain laws should be guided by open and relatively stable general rules.” These rules themselves should operate in an impersonal and impartial manner. The “formal” interpretation is more widespread than the “substantial” interpretation. Formalists believe that the law must be forward-looking and well-known and have characteristics of generality, equality and certainty. Apart from that, the formal opinion does not contain any requirement as to the content of the law. [36] This formal approach allows for the adoption of laws that protect democracy and individual rights, but recognizes the existence of the “rule of law” in countries where such laws do not necessarily exist to protect democracy or the rights of the individual. The best-known arguments in favour of formal interpretation have been put forward by A.V. Dicey, F.A.Hayek, Joseph Raz and Joseph Unger. This sixth principle expresses the idea that laws must be enforceable. In the United States, it has long been established that a right without recourse is not a right at all.

In Marbury v. Madison in 1803, Chief Justice John Marshall wrote for the Supreme Court: “The government of the United States was categorically designated as a government of laws and not of people. He will certainly cease to obtain this high designation if the laws do not provide for remedies in case of infringement of an acquired right. [51] “Access to justice” is an essential element of the rule of law and must provide people with remedies to enforce their rights and the opportunity to access justice in order to obtain such remedies. The functional interpretation of the term “rule of law”, in accordance with the traditional English sense, contrasts “rule of law” with the “rule of man”. [39] From a functional perspective, a corporation in which government officials have a wide margin of appreciation has a low degree of “rule of law,” while a corporation in which government officials have little discretion has a high degree of “rule of law.” [39] Respect for the rule of law may sometimes require punishment for those who commit offences justified by natural law, but not by legal law. [40] The rule of law is therefore somewhat at odds with flexibility, although flexibility is preferable. [39] The rule of law can be hindered if there is a gap between legal consensus and popular consensus. Intellectual property is one example.

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