The rule of law is considered one of the key dimensions that determine the quality and good governance of a country. [42] Research, like the Global Governance Indicators, defines the rule of law as: “the extent to which agents trust and respect the rules of society, particularly the quality of contract, police and court enforcement, and the likelihood of crime or violence.” [42] Based on this definition, the Global Governance Indicators project has developed aggregate measures of the rule of law in more than 200 countries, as shown in the map on the right. [43] The “rule of law” means, first and foremost, “protection of property rights.” [90] The economist F. A. Hayek analyzed how the rule of law could benefit the free market. Hayek suggested that under the rule of law, individuals would be able to make wise investments and future plans with some confidence in a successful return on investment, when he said: “Under the rule of law, government is prevented from crippling individual efforts by ad hoc action. Within the known rules of the game, the individual is free to pursue his personal goals and desires, with the certainty that the power of government is not deliberately used to thwart his efforts. [91] After reading the preceding quotations and comments on the rule of law, ask dialogue participants to begin to elaborate on the meaning of the “rule of law.” As you do so, ask participants to ponder the following questions: Listen to federal judges explain why the rule of law matters and how it affects our daily lives In general, the rule of law implies that the creation of laws, their application, and the relationships between the laws themselves are governed by the law, so that no one – including 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. Judicial independence means that judges are independent of political pressure and influence in their decisions. An independent judiciary is essential to uphold the rule of law. Judges should not be influenced by political party, private interest or public opinion when asked to determine what the law requires. The independence of the judiciary from these influences ensures that everyone has a fair chance to defend their case in court and that judges are impartial in their decisions. Judges must also explain their decisions in public written statements, and their decisions can be challenged for review before a higher court.
These elements of judicial decision-making ensure that judges remain accountable to the rule of law. The substantive interpretation favoured by Dworkin, Laws and Allan asserts that the rule of law fundamentally protects some or all individual rights. In modern debate we also hear echoes of the teaching of L`Esprit des lois (1748: Bk. 26, chap. 15, p. 510) that “things which depend on the principles of civil law must not be governed by the principles of political law.” “Civil law” – Montesquieu`s word for what we call private law – is, as he said, “the palladium of property,” and it should be allowed to operate according to its own logic, not weighed down by the principles of public or political regulation. A failure of the rule of law in this respect is likely to lead to the impoverishment of an economy as expectations collapse and owners` incentives for production and enterprise are undermined (Montesquieu 1748: Bk. V, chap. 14, p.
61). This emphasis on the value of complexity—the ways in which complicated laws, particularly property laws, provide protections under which people can find shelter from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law (e.g., Thompson 1975: 258-69). The rule of law is a term often used but difficult to define. A commonly heard saying is that the rule of law means governing the law, not men. But what is meant by “a government of law, not men”? Studies have shown that weak rule of law (e.g. discretionary application) discourages investment. Economists have found, for example, that an increase in discretionary enforcement of regulations has led U.S. companies to abandon international investment. [92] Generality is an important feature of legality, which is reflected in long-standing constitutional antipathy to attack bills. Of course, the law cannot function without special ordinances, but as Raz (1979 [1977]:213) points out, the general public requirement is generally understood to mean that “the creation of certain laws should be guided by open and relatively stable general rules.” These rules themselves should be impersonal and impartial.
Justice Kennedy suggests that the rule of law has taken on special significance for the people of the United States, based on our history of looking to the law to fulfill the promises of freedom, justice, and equality set forth in our nation`s founding documents. Indeed, as we discussed in more detail in Part II of the Dialogue, our understanding of the rule of law in the United States has evolved around the belief that one of the primary purposes of the rule of law is to protect certain fundamental rights. The U.S. Constitution was a nation`s first attempt to create a written constitution of laws that would bind the government and guarantee special rights to its people. Today, the rule of law is often linked to efforts to promote the protection of human rights worldwide. All representatives of the U.S. government, including the president, Supreme Court justices, state justices and legislators, and all members of Congress, are primarily committed to upholding the Constitution. These oaths affirm that the rule of law is superior to the rule of any human ruler. [52] At the same time, the federal government has considerable discretion: Parliament is free to decide which laws it drafts, provided that they remain within its enumerated powers and respect the constitutionally protected rights of the individual. Similarly, the judiciary has some discretion,[53] and the executive also has various discretionary powers, including prosecutorial discretion.
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 first known use of this English term dates back to about 1500 AD. [24] Another early example of the term “rule of law” can be found in a petition from the House of Commons to James I of England in 1610: the rule of law does not depend on an American-style separation of powers. In a parliamentary system, for example, the powers of the executive and legislative branches are combined; Procedures such as no-confidence votes and regular elections are used to control which party controls parliament. The key point is that every form of government must have a system to ensure that no one in government has enough power to act above the law. The General Assembly has been dealing with the rule of law as 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 with respect to 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 in relation to the countries on its agenda. [76] The Vienna Declaration and Programme of Action also calls for the integration of the rule of law into human rights education. [77] In addition, Sustainable Development Goal 16, part of the 2030 Agenda, aims to promote the rule of law at the national and international levels. [78] The words of Martin Luther King of Birmingham prison remind us that there is a difference between law and justice.
The law, while applied uniformly, does not in itself guarantee a fair outcome. The rule of law must promote stability, but a society based on the rule of law must also remain vigilant so that the rule of law also serves the interests of justice. As this quote shows, the continued strength of the rule of law sometimes depends on the willingness of people willing to risk punishment for justice. The WJP Rule of Law Index measures how the rule of law is experienced in everyday life in 126 countries and jurisdictions around the world. worldjusticeproject.org/ Various organizations are committed to promoting the rule of law. INPROL provides an online forum for the exchange of information on best practices. Members can ask questions and expect their counterparts around the world to respond to their rule of law experience. BDSM Bondage The International Development Law Organization (IDLO) is an intergovernmental organization that focuses on promoting the rule of law and development.