The rule of law means that every citizen is subject to the law. This is contrary to the idea that the sovereign is above the law, for example by divine right. The law must also be clearly known and accessible to all, in the sense that everyone can have the opportunity to know its content. This not only allows everyone to know what is expected of them under the law, but also creates a condition in which everyone, by knowing its content, can promote accountability to the law. In other words, transparency supports the rule of law by ensuring that people know the content of the law, that they can be expected to act accordingly, and that it can also support accountability mechanisms by knowing what to expect from everyone. Aristotle`s work on the rule of law is still influential. Although he framed the question of whether it was better to be governed by the best man or by the best laws, he approached this question realistically, noting that it depended not only on the type of law considered, but also on the type of regime that enacted and administered the law in question (Politics 1282b). In Islamic jurisprudence, the rule of law was formulated in the seventh century. so that no official could claim to be above the law, not even the caliph. [19] 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 are not to 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). Debating what the rule of law requires is partly a product of the fact that the law itself encompasses many things and people prefer different aspects of a legal system. For some, the common law is the epitome of legality; for others, the rule of law means the impartial application of a clearly formulated law; For others, the rule of law is still the epitome of a stable constitution that has been embedded in a country`s politics for centuries. When Aristotle (Politics 1287b) compared the rule of law to the rule of men, he dared to think that “a man can be a ruler safer than written law, but no safer than customary law.” In our time, F.A. Hayek (1973:72 ff.) sought to distinguish the rule of law from the rule of law by identifying the former more closely with the evolutionary development of the common law, which was less constructive and subject to conscious control than the enactment of legislation. There is also an ongoing debate about the relationship between the law and government mechanisms.
For some, formal discretion is incompatible with the rule of law; For others, it depends on how discretion is designed and authorized. For some, the final decision of a court boils down to the rule of law; For others who are aware of the politics of justice, rule by the courts (especially a politically divided court) is as much an example of the rule of the people as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies). worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2021/factors-rule-law The simplest answer to these questions is that the rule of law can never be completely separated from the people who make up our government and society. Rather, the rule of law is an ideal to which we aspire, but sometimes we do not realize. 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). In 1215, Archbishop Stephen Langton gathered the barons in England and forced King John and future rulers and magistrates back to the rule of law, preserving the ancient liberties of Magna Carta in exchange for high taxes.
[21] [22] This basis for a constitution was incorporated into the United States Constitution. Finally, an analytical question. What is the relationship between the rule of law and the rule of law? It can be argued – arguably controversially – that the two need to be brought together (see Waldron 2008 and Simmonds 2008). The concept of law could be understood as encompassing the fundamental elements of legality, although that identification seems all the less plausible the more substantial the concept of the rule of law. For this reason, a system of government does not count as law if it does not have the characteristic forms and processes that we associate with legality. Otherwise, we lose the sense of the institutional specificity of law as a way of governing a society. We have seen above that Lon Fuller (1958 and 1964) envisaged a link in this direction. The same goes for Ronald Dworkin in his later work. Dworkin (2004) asked us to examine a situation in which judges and lawyers faced difficult questions of interpretation or difficult dilemmas arising from multiple sources of law. He said that in such cases, we could say that what is required by law may be different from what is required for legal reasons. This is a familiar separation (even if Dworkin thought it was narrower and more blurred than most right-wing positivists believed).
But he said it would make no sense to say that what is needed as a matter of legality or respect for the rule of law is different from the legal solution in this case. To find the legal solution, we must approach the various legal and policy documents in light of our commitment to legality. However, this is not the position obtained. According to Joseph Raz (1977) and others, one cannot understand the rule of law unless one already and independently understands what law is and what evils the law is likely to cause (which the rule of law seeks to prevent). For this reason, legality represents a particular set of concerns about law that have arisen in our civilization. The fact that these concerns are undoubtedly moral in nature (even if they are not overarching moral concerns) means that, according to Raz, it is preferable to separate them from the legal concept itself, lest we introduce a moral element into that concept.