Legal and Rule of Law

As we saw in Hayek`s discussion (1973), the other side of the coin is the denigration of legislation, precisely because its adoption seems obvious and undeniable to represent the rule of powerful officials. Legislation is a matter of will. The legislative process produces laws simply because a group of people in an assembly decides that a particular law should be created. And this is done by the very men – powerful politicians – in whose power the rule of law is supposed to be an alternative. The World Justice Project has developed an index to measure the extent to which countries adhere to the rule of law in practice. The WJC Rule of Law Index is composed of 9 factors and 52 sub-factors and covers various dimensions of the rule of law – such as whether government officials are accountable under the law and whether legal institutions protect fundamental rights and give ordinary people access to justice. [81] The courts play an essential role in upholding the rule of law, particularly when hearing complaints from minority groups or individuals who may hold minority views. Equality before the law is so integral to the U.S. system of government that when a majority, intentionally or unintentionally, violates the rights of a minority, the Court sees fit to hear both sides of the controversy in court. As a result, it can be said that the rule of law is not limited to government and citizens who know and respect the law.

The rule of law encompasses other concepts, such as checks and balances in governance, independence of the judiciary, presumption of innocence, access to justice and the right to a fair trial. Respect for and support for the rule of law brings great benefits to businesses and other stakeholders. When the rule of law is weak, it is more difficult for responsible businesses to operate, comply with their legal obligations and protect their legal rights. In 1959, a demonstration was held in New Delhi at which the International Commission of Jurists issued a statement on the fundamental principle of the rule of law. The event brought together more than 185 judges, lawyers and law professors from 53 countries. This later became known as the Delhi Declaration. During the statement, they explained what the rule of law entails. These include certain rights and freedoms, an independent judiciary and social, economic and cultural conditions conducive to human dignity. The only aspect not included in the Delhi Declaration was the rule of law, which required judicial oversight of the legislature. [69] Positions and methods of servitude Concept in the sense of five (different) “objectives” of the rule of law: However, most people who value the rule of law do not accept this approach. If a law is properly drafted (if it is clear, understandable and generally expressed) and is promulgated and promulgated prospectively, and if it is administered impartially and with due process, they will describe this as a perfectly appropriate exercise of the rule of law.

In fact, this is what many scholars mean by the rule of law: people are governed by measures that are usually established in advance and also applied according to the conditions under which they were publicly proclaimed. The argument that it should be set aside because it does not sufficiently contrast with the domination of the people seems perverse. No one doubts that legislation can sometimes undermine the rule of law, for example by purporting to remove the legal responsibility of a number of official acts or exclude the possibility of judicial review of executive actions. But this is not a problem with the legislation as such; This is a concern about the content of some regulations. Moreover, rule by judges can sometimes be seen as precisely the type of male rule that the rule of law is intended to replace (see Waldron 2002: 142-3 and 147-8). Some lawyers who maintain the contrast between the rule of law and the rule of law have a more ambitious agenda. They take seriously the age-old idea that we can be governed by laws and not by people. One wonders: how is this going to be done? After all, all laws are made by people and interpreted by people and enforced by people. He can no longer govern us alone, without human help, than a cannon can dominate us, without a hardware store to launch it, and a gunner to charge and fire it. Legal scholars who compare the rule of law to the rule of law believe they can do so by focusing on laws whose human origins are somehow diffuse or immemorial. We`re not necessarily talking about natural law here, but perhaps something like the common law or the common law – the law that isn`t so obviously a descendant product of powerful human legislators (Epstein 2011). The common law grows and develops on its own and does not need to be conceived as a means by which some identifiable persons rule over others.

Undoubtedly, there is a lot of mythology in it. A more realistic view of the common law identifies it with the conscious and arbitrary rule of an entity that Bentham (1792) called “Judge & Co.” But it remains true that the human element in this type of system is diffuse, and at any time the law that arises is the result of the work of many people and not the deliberate product of a dominant majority that governs us from the legislative center of a state. Others, such as Richard Epstein (2011:10), accept that “the rule of law . a concept distinct from private property.” Nevertheless, they believe that a contingent link can be established between the rule of law and private property by showing that the forms of regulation that concern defenders of private property tend to be forms of regulation that prohibit the rule of law, even with a stricter conception. The rule of law is defined in the Oxford English Dictionary as “the authority and influence of law in society, particularly when viewed as a limitation of individual and institutional behaviour; Hence the principle that all members of a society (including those in government) are also subject to publicly available legal codes and procedures. [2] The term “rule of law” is closely related to both constitutionalism and the rule of law and refers to a political situation and not to a specific legal norm. [3] [4] [5] The “formal” interpretation is more widespread than the “substantial” interpretation. Formalists believe that the law must be forward-looking, well-known, and have characteristics of generality, equality, and security. In addition, the formal notice does not contain any requirements 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 that do not necessarily have such laws to protect democracy or individual rights. The best-known arguments in favor of formal interpretation have been advanced by A.V.

Dicey, F.A.Hayek, Joseph Raz and Joseph Unger. The rule of law is more than just a matter of due process, it enables justice and development. The three terms are interdependent; When realized, they reinforce each other. For IDLO, the rule of law is as much a matter of laws and procedures, but also of culture and daily practice. It is inextricably linked to equality, access to justice and education, access to health and protection for the most vulnerable. It is essential to the sustainability of communities and nations and the environment that supports it. [85] The substantive interpretation favoured by Dworkin, Laws, and Allan is that the rule of law fundamentally protects some or all of the individual rights. But the rule of law is not just about government. It also requires citizens to respect and comply with legal standards, even if they disagree with them. If their interests conflict with those of others, they should accept the legal provisions concerning their rights and obligations.

In addition, the law should be equal for all, so that no one is above the law and everyone has access to the protection of the law. The access requirement is particularly important in two respects. First, the law should be epistemic accessible: it should be a body of norms proclaimed as public knowledge so that people can study it, internalize it, discover what it requires of them, and use it as a framework for their plans and expectations and to settle their differences with others. Second, legal institutions and their procedures should be available to ordinary people to enforce their rights, settle their disputes and protect them from abuse of public and private power. All this, in turn, requires the independence of the judiciary, the accountability of government officials, transparency of public affairs and integrity of the judicial process. The norms of constitutional economy can be used during the annual budget process, and if this budgeting is transparent, the rule of law can benefit. The availability of an effective judicial system that can be used by civil society in situations of inequitable public spending and seizure of funds previously approved by the executive branch is a key element in the success of rule of law efforts. [88] The influence of Britain, France and the United States has helped spread the principle of the rule of law to other countries around the world. [33] [34] In countries such as China and Vietnam, the transition to a market economy has been an important factor in the transition to the rule of law, as the rule of law is important for foreign investors and economic development.

It is not clear whether the rule of law in countries such as China and Vietnam will be limited to trade issues or extend to other areas and, if so, whether these effects will improve the prospects for related values such as democracy and human rights. [63] The rule of law in China has been the subject of much discussion and debate by both jurists and politicians in China.