Who Is above the Rule of Law

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. John Locke, in the second of his Two Treatises on Government (1689), emphasized the importance of governance through “permanent laws established, promulgated, and known to the people.” He opposed this to domination by “temporary arbitrary decrees” (Locke 1689: §§ 135-7). Now, the term “arbitrary” can mean many different things. Sometimes it means “oppressive.” But when Locke distinguished the rule of established laws from arbitrary decrees, it was not the oppressive feeling of “arbitrariness” that he had in mind. In this context, something is arbitrary because it is temporary: there is no notice of that; The sovereign simply discovers it while he is participating. It is the arbitrariness of the unpredictability of not knowing what one can count on, of being submissive, as Locke said (1689: § 137), of being subject to someone. The mission of the American Bar Association Rule of Law Initiative is to promote justice, economic opportunity, and human dignity through the rule of law. Learn how ABA is advancing the rule of law around the world through the Rule of Law Initiative (ROLI). The rule of law is a set of principles or ideals aimed at ensuring an orderly and just society. Many countries around the world strive to uphold the rule of law, where no one is above the law, where everyone is treated equally before the law, where everyone is held accountable under the same laws, where there are clear and fair procedures for enforcing laws, where there is an independent judiciary and where human rights are guaranteed for all.

After reading the previous quotes and comments on the rule of law, ask the participants in the dialogue to begin to elaborate on the meaning of the “rule of law”. Invite participants to think about these questions: In 2007, ABA President William Neukom founded the World Justice Project. The World Justice Project acknowledges the problem that “rule of law is a commonly used term that is rarely defined.” One of the goals of the World Justice Project is to develop a universally accepted definition of the rule of law that could be used to measure respect for the rule of law in the United States and abroad. Based on the belief that the rule of law is a prerequisite for building societies that provide opportunity and justice for all its citizens, the World Justice Project proposes to use its definition of the rule of law to create an index that measures how nations around the world follow or fail to follow the rule of law. 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] In general, the rule of law implies that the creation of laws, their application, and the relationships between legal norms themselves are governed by law, so that no one – not even the most senior official – is above the law. The legal limitation of rulers means that the government is subject to existing laws just as much as its citizens. A closely related term, therefore, is the idea of equality before the law, which states that no “moral” person can enjoy privileges that are not extended to all, and that no one can be immune from legal sanctions. In addition, the application and determination of legislation by various officials must be impartial and consistent in equivalent cases, regardless of the grade, status or relative authority of the parties to the dispute.

For these ideas to be truly bought, there should also be a legal apparatus that obliges civil servants to submit to the law. The Oxford English Dictionary has defined the rule of law as follows:[2] Although many jurists follow Raz 1977 and believe that the rule of law is a purely formal/procedural ideal, others believe in adding a more substantial dimension. They do not believe that it is possible to clearly separate our political ideals, as Raz seems to assume. At least the formal/procedural aspects generate some momentum in a substantive direction. It is often said that generality – proceeding according to a rule – contains the seed of justice (Hart 1961: chap. 8). And stability, publicity, clarity and foresight indicate a fairly fundamental link between the rule of law and the conditions of freedom. However, we must be careful to distinguish between the supposedly substantive requirements of the rule of law and the specification of the deeper values that underlie and motivate the ideal also in its formal and procedural requirements.

A similar question arises with regard to the use of standards, which are more of a standard than a rule. (A rule is like a digital speed limit, while a standard is like a standard that requires people to drive at a “reasonable” speed.) Legal systems use both types of norms (Sunstein, 1994); They use standards for cases where the appropriate decision may vary depending on environmental conditions, and it seems preferable to trust the judgment of those in a particular situation rather than set it in advance. There is an element of respect for the individual`s ability to judge that is conveyed by the use of a standard. At the same time, standards allow for less legal certainty, especially when it is difficult for the person trying to comply with the standard to predict how his or her judgment will be judged by an official or court. Hayek suggests that the rule of law is valuable and important in this context because it creates an environment conducive to freedom. According to Hayek`s theory of the rule of law – especially in the early stages of his work (see section 3.5 above) – we value requirements such as generality and impersonality because they free us from dependence on the will of others: man`s natural freedom is to be free from any higher power on earth and not to be under man`s will or legislative authority. but to have only the natural law for his reign. Human liberty in society may not be the subject of any legislative power other than that established by consent in the community; nor under the domination of any will or limitation of any law, but that which this legislature must promulgate according to the confidence placed in it.

Freedom is therefore not what Sir Robert Filmer tells us, Observations, A. 55. a freedom for everyone to do as he lists, to live as he pleases, and not to be bound by laws: but the freedom of men under government means having a permanent rule by which to live. which is common to all in this society and which is made by the legislative power established therein; the freedom to follow my own will in all things where the rule does not prescribe it; and not to be subject to the impermanent, uncertain, unknown, arbitrary volatile will of another man: as is the freedom of nature to be subject to no limitation other than the law of nature. [28] The old concept of the rule of law can be distinguished from the rule of law, according to political scientist Li Shuguang: “Difference. is that the law takes precedence over the rule of law and can serve as a check against abuses of power. In the context of the rule of law, the law is merely a tool for a government that legally suppresses. [41] Is it reasonable to use the rule of law to assess how a society responds to emergencies? It is often assumed that emergencies require more persuasive and less procedurally burdensome forms of government action than are normally required.