THE HISTORY AND ELEMENTS OF THE RULE OF LAW (original) (raw)
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The rule of law is the most important political ideal today, yet there is much confusion about what it means and how it works. This book explores the history, politics, and theory surrounding the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory and liberal political systems. The author outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book examines the rule of law on a global level, and concludes by answering the question of whether the rule of law is a universal human good.
Law, Democracy, and the Rule of Law
Oxford University Press eBooks, 2020
Law, Democracy, and the Rule of Law Some people believe that law is a set of orders backed by threats, but this raises issues with legal rules that determine when a marriage is valid. Nobody is ordered to marry, there are no threats when you don't. It is just that you cannot get married if you don't follow the rules. The rules do not regulate but constitute a marriage in the legal sense of that term. Others like to think of law as a bran-tub of social norms, but many social norms are not legal norms. Shaking hands may be a social norm, but in principle it is not required by law. Many assume that law is a system of legal rules, but what does this say for the principles that ground these rules and the policies that refine them? If these principles are not law, and these policies not under the rule of law, what are they? Still others may claim that law is simply a subset of moral rules (those with teeth), but that would imply morality in driving either right or left. This chapter will squarely face the question of law's 'mode of existence', by asking what law does-and how. This means checking on the sources of law, the nature of legal reasoning, and the question of the relationship between law, democracy, and the Rule of Law.
The Rule of Good Law: Form, Substance and Fundamental Rights
The Cambridge Law Journal, 2019
This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.
Handbook on the Rule of Law, 2018
Considering the rule of law as essential for the legal protection of human rights, the piece examines how human rights law adds clarity to this governing principle. From the 1948 Universal Declaration of Human Rights to the 2012 Rule of Law Declaration, human rights has contributed to making the rule of law as an essential component to living our life with dignity. The piece outlines five main ingredients as constituents of this notion: legality, equality, participation, transparency, and accountability. It shows how the rule of law can be measured through a human rights lens. Exploring the discourse of thin and thick approach to the rule of law, it argues that rule of law assistance must be assessed through it ability to meaningfully contributing to the realization of human rights.
Between Democracy and the Rule of Law
Teka Komisji Prawniczej PAN Oddział w Lublinie [Teka Commission of Legal Sciences Polish Academy of Sciences Branch in Lublin], vol. 9, 84-99, 2016
This article discusses two basic concepts in scientific legal discourse the concept of democracy and the concept of the rule of law. Obviously, both concepts are inextricably linked to the concept of the state of law (legal state). The necessary condition for the rule of law is the existence of the legal order, but it should be emphasised that one may link the idea of the rule of law to either the theory of the separation of powers or the theory of the sovereignty of the people. The authors analy-sis concerns vertical and horizontal relationships between, in particular, the concept of the rule of law and the concept of the state and law. The author also considers the question of the binding force of legal norms. The thesis that the author makes is that, although there is a relationship between these concepts, one should also point out that both democracy without parliamentarianism and parliamen-tarianism without democracy are possible. Likewise, dictatorship does not essentially contradict democracy, which was emphasised especially by Jean- Jacques Rousseau, just like democracy does not necessarily rule out dictatorship.
Jurisprudence, 2017
The rule of law is among the essential pillars upon which any highquality democracy rests. But this kind of democracy requires not simply a rule of law in the minimal, historical sense that I will shortly explain. What is needed, rather, is a truly democratic rule of law that ensures political rights, civil liberties, and mechanisms of accountability which in turn affirm the political equality of all citizens and constrain potential abuses of state power. Seen thus, the rule of law works intimately with other dimensions of the quality of democracy. Without a vigorous rule of law, defended by an independent judiciary, rights are not safe and the equality and dignity of all citizens are at risk. Only under a democratic rule of law will the various agencies of electoral, societal, and horizontal accountability function effectively, without obstruction and intimidation from powerful state actors. And only when the rule of law bolsters these democratic dimensions of rights, equality, and accountability will the responsiveness of government to the interests and needs of the greatest number of citizens be achieved. Although in some of my previous writings readers may find partial attempts at the theoretical and normative justification of a democratic rule of law, here I make only passing reference to these matters. My intention is to contribute to a discussion concerning if and how something called the rule of law, or the democratic rule of law, may be conceptualized and, insofar as possible, empirically gauged. To this
The Rule of Law at Home and Abroad
The article addresses the meaning of the Rule of Law and its import between domestic and supra-State legalities, starting from problems raised by real cases, and the insufficiency of some received ideas or more common notions-from those requisites-based to formal, material, or procedural ones-to cope with them. Accordingly it focuses upon a ''dual'' structure of legality as an institutional condition for the Rule of Law to pursue its normative ideal. The ''duality condition'' for the Rule of law is historically and theoretically reconstructed in its origin and development, and the notion is carefully distinguished from rule compliance, procedural fairness, substantive justice, the principle of legality, and other different achievements of the present legal civilization. Its essential content shapes a separate, distinct identity vis a ` vis democracy and human rights, while it appears conducive to the appraisal of several problems related to the Rule of law oversight in diverse current circumstances.