The importance of the rule of law, discussed in the previous section, is important but limited. Any law duly adopted by Parliament would be in conformity with the rule of law thus defined. Therefore, the fact that laws must be passed in the right legal manner is a necessary aspect of the rule of law, but it is not enough. The Statute of the Council of Europe characterises the rule of law as one of the fundamental principles on which the creation of the Organisation is based. Paragraph 3 of the Preamble to the Statute of the Council of Europe states: “Reaffirming their attachment to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political freedom and the rule of law, principles which constitute the basis of all true democracy. The Statute establishes respect for the principles of the rule of law as a condition for European States to be full members of the Organisation. [68] Allan`s interpretation of the rule of law also contains a mixture of formal and material elements. [195] He argues that we should go beyond the formal conception of the rule of law, but that we should stop thinking of the rule of law as the expression of a particular theory of substantive justice. From this point of view, the rule of law does not imply a commitment to a particular vision of the common good or a particular notion of social justice, but requires that all legal obligations be justified by the invocation of such a vision. In addition to its formal attributes, the rule of law should also include ideals of equality and rationality, proportionality and fairness, as well as certain substantive rights. These are supposed to be central elements of any recognizable liberal justice theory, while leaving the scope and content of rights and obligations that citizens should possess largely irrelevant debates and analyses.
Formal equality must be complemented by more substantial equality, which implies that the relevant distinctions must be justified in the sense of an idea of the common good. Allan`s theory also includes some substantive rights, namely freedom of expression, freedom of conscience, freedom of association and access to information. It is recognized that within a liberal regime there will be other rights that should be faithfully applied, but these are not considered to be an integral part of the rule of law. In China, members of the school of legalism advocated in the 3rd century BC for the use of law as an instrument of governance, but they promoted the “rule of law” as opposed to the “rule of law,” meaning they placed aristocrats and the emperor above the law. [15] In contrast, the Huang Lao school of Taoism rejected legal positivism in favor of a natural law to which even the ruler would be subject. [16] The idea of the rule of law is that once laws are enacted, everyone should follow them, both the citizens of the country and the government of the country. Powerful people should not get a passport just because they have a lot of money or social status. And government officials should not be able to stand above the law just because they created the laws. The International Development Law Organization (ADA) is an intergovernmental organization with a focus on the promotion of the rule of law and development. It strives to empower individuals and communities to claim their rights and provides governments with the expertise to make it a reality.
[82] It helps emerging and middle-income countries strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity. [83] It is the only intergovernmental organization with an exclusive mandate to promote the rule of law and has experience working in more than 170 countries around the world. [84] The use of the term dates back to 16th century Britain. In the following century, the Scottish theologian Samuel Rutherford opposed the divine right of kings. [6] John Locke wrote that freedom in society means being subject only to the laws of a legislature that apply to all, with a person otherwise free from state restrictions and deprived of liberty. The “rule of law” was popularized in the 19th century by the British jurist A. V. Dicey. However, the principle, if not the sentence itself, was recognized by ancient thinkers. Aristotle wrote, “It is more appropriate for the law to govern than any of the citizens.” [7] The second principle of Dicey`s rule of law concerns equality: “Every human being, whatever his rank or condition, is subject to the general law of the reich and is open to the jurisdiction of the ordinary courts.” The rule of law implies that everyone is subject to the law, including people who are legislators, law enforcement officers and judges. [8] In this sense, it contrasts with tyranny or oligarchy, where rulers are held above the law. A resource for leading organizations, model programs, rule of law information, and more.The rule of law is underscored by many different ideas. Among them are law and order as opposed to anarchy; the direction of government in accordance with the law (i.e., “lawful government”) and normative discussion of the rights of the state in relation to the individual. [1] Albert Venn Dicey described the rule of law as acting in three ways: the supremacy of ordinary law as opposed to the influence of arbitrary power; equality before the law; and that constitutional laws are not the source but the consequence of the rights of the individual. [2] Others argue that the rule of law has survived, but has been transformed to allow for the exercise of discretion by directors. For much of American history, the dominant notion of the rule of law in this environment has been a version of V.A. Diceys: “No human being is punishable by law or can legally be subjected to bodies or property, except in cases of manifest violation of the law, which has been established by the ordinary courts of the land in the ordinary courts of the land.” That is to say, individuals should be able to challenge an administrative order by bringing an action before a court of general jurisdiction. As the files of workers` compensation boards, public pension boards and other bodies arose, it quickly became clear that judges would leave all the facts in a dispute (such as the extent of an injury in a workers` compensation case) to decide for themselves, overwhelm the courts and destroy the benefits of specialization that led to the creation of bodies. administrative in the first place. Even Charles Evans Hughes, a chief justice of the United States, believed, “You must have an administration, and you must have an administration by administrative officials.” By 1941, a compromise had emerged. If the directors adopted procedures that more or less followed the “ordinary legal form” of the courts, there was no need to pursue the control of the facts by “the ordinary courts of the country”. That is, if you had your “day at the Commission”, the rule of law did not require another “day in court”.
Thus, Dicey`s rule of law has been transformed into a purely procedural form. [57] The old concept of the rule of law can be distinguished from the rule of law, according to political scientist Li Shuguang: “The difference. it is that, in the rule of law, the law prevails and can serve as a control against abuses of power. Under the rule of law, the law is just a tool for a government that oppresses legalistically. [41] The rule of law therefore ensures that governments and peoples act in accordance with the law. Governments of law, for example, differ from the absolute monarchies that ruled medieval Europe, where the king or queen was not always subject to the laws of the land. That`s why an event like the signing of the Magna Carta by King John in 1215 was a big deal (even though it was signed under duress and soon withdrawn – that`s a story for another day). This was a big problem, because the Magna Carta was a document that, among other things, required the king to follow the rules as well. The justification for restricting the rule of law in this way is as follows. [179] We can all agree that laws should be fair, that their content should be morally sound, and that rights in society should be protected. The problem is that when the rule of law is understood to include the need for “good laws” in that sense, the term ceases to have an independent function. There is an abundant literature devoted to the discussion of the importance of a just society, the nature of the rights it should be and the appropriate limits of State action.
Political theory has always dealt with issues like these. Placing these issues under the rule of law would therefore deprive this concept of its own function. Laws would be condemned or maintained as conforming to or contrary to the rule of law if the condemnation or praise merely reflected a commitment to a particular conception of rights, democracy or the just society. So the message is that if you want to discuss the justice of society, do it by all means. If you want to defend a certain type of individual right, make your case. Take advantage of the wealth of literature that deals directly with these topics. From this point of view, however, it is neither necessary nor desirable to wrap the conclusion in the mantle of the rule of law, as it merely reflects the conclusion already reached by relying on a particular theory of rights or a just society. After ordinary executive decisions were delegated, for example to a recognized prime minister and cabinet system from the mid-18th century, after the Bill of Rights of 1689 in the Glorious Revolution, the highest courts established jurisdiction and consolidated the growing doctrines of the rule of the inscribed bill and parliamentary sovereignty. .