Administrative Law Week 2: Rule of Law PDF

1\. Introduction The rule of law is a very powerful notion, repeated constantly by lawyers, politicians, and ordinary citizens but most of us have little idea of what the Rule of Law is.  The Rule of Law is a central component of the most Western countries. However, there are many disputes among s...

1\. Introduction The rule of law is a very powerful notion, repeated constantly by lawyers, politicians, and ordinary citizens but most of us have little idea of what the Rule of Law is.  The Rule of Law is a central component of the most Western countries. However, there are many disputes among scholars about what constitutes the Rule of Law and it is very hard to present an exhausted definition of this notion. One reason for that might be that the Rule of Law can only be understood contextually, through the interpretation of a context formed from the materials, values, experiences, and conflicts of a particular culture over time and history[\[1\]](applewebdata://B164CDB5-38B3-46BE-A514-DFB42FB0F527#_ftn1).   What is the ideal Rule of Law? At its core the Rule of Law means that the government and citizens are bound by and act consistent with the law. This demands that law must be set forth in advance, must be made public, be general, be clear, be stable and certain, and be applied to everyone according to its terms.[\[2\]](applewebdata://B164CDB5-38B3-46BE-A514-DFB42FB0F527#_ftn2) This is the so-called "thin" (formal) definition of the rule of law. Other definitions add democracy and human rights components to the Rule of Law ("thick" definition).  2\. Evolution of the Rule of Law The phenomenon that the monarch should be abide by law was noticed long before the movement of individual rights emerged. At the beginning it was about the opposition to tyranny. The Justinian Code states: "What has pleased the prince has the force of law" and although another provision claims that: "The prince is not bound by the laws" it was understood that Prince is bound by the law of the land which he could change as he desired.[\[2\]](applewebdata://EA1FC45F-5B7A-4ED2-ACE3-554BB42FCFB9#_ftn2) In the Middle Ages one way to limit the Kings's power was to swear an oath he would abide to the law. Very often acting according to law was a matter of custom and conduct and different practices evolved over time.[\[3\]](applewebdata://EA1FC45F-5B7A-4ED2-ACE3-554BB42FCFB9#_ftn3) The concept of the Rule of Law and its counterparts Rechtsstaat, État de droit, Estado del Derecho, Stato di diritto which is a determinant of contemporary constitutional and civilizational standards, do not have precise definitions. Even in Western, liberal democracies they have different meanings, which reflect different conditions of political culture. What all these traditions have in common is that in the 19th century the rulers were obliged to make concessions and accept certain limitations of their absolute power.  The immediate predecessor of the rule of law was the police state. The concept of a police state arose during the period of an absolute monarchy. The idea of the rule of law was built in opposition to the state. The police state provided the basis for the formal aspect of the rule of law, but it was still a state in which the monarch played the most important role. The peaceful transformation of the arbitrary power of the monarch into a monarchy limited by law, and then into a state whose law constitutes the nation, was to take place through creation of a proper legal system. A "revolution in law" instead of a revolution in the streets: the legal system was to create the political foundations of the state and guarantee the common good and the good of the individual.[\[4\]](applewebdata://EA1FC45F-5B7A-4ED2-ACE3-554BB42FCFB9#_ftn4) As the holder of political power, the absolute state was free from any external limit, then the rule of law is a juridical-organizational response to the historical parenthesis of absolutism, aimed at neutralizing the negative effects on social dynamism by introducing guarantees in favour of the freedom of individuals (producers).[\[5\]](applewebdata://EA1FC45F-5B7A-4ED2-ACE3-554BB42FCFB9#_ftn5) The concept of the rule of law was expressed primarily in the Anglo-Saxon formula of the rule of law and the formula of the *Rechtsstaat* characteristic of German-speaking countries. The Anglo-Saxon formula refers exclusively to law, while the German formula emphasizes the relationship between law and the state. Both formulas are based on different theoretical concepts, which, however, are based on common assumptions. As a basis, they assume human freedom and a specific political order that should guarantee this freedom. The normative shape of the rule of law and Rechtsstaat is influenced by the historical development of constitutional ideas, doctrines, and practice. The Anglo-Saxon and German traditions are different in this respect, but not contradictory. The Anglo-Saxon concepts of the rule of law refer primarily to the views of J. Lock, while the German ones -- to the views of I. Kant. As Lon Fuller points out, despite these differences, the idea of the rule of law and *Rechtsstaat* is based on the same values attributed to law: universality, certainty, availability, and predictability. Regardless of the differences regarding the principle of separation of powers, government systems or the role of the law, these values are implemented in both of the above-mentioned approaches. Different constitutional traditions do not affect the material aspect of the rule of law. It has always been based on the principle of justice, and now it is also based on the principle of human dignity and the need to protect one\'s natural rights.[\[6\]](applewebdata://EA1FC45F-5B7A-4ED2-ACE3-554BB42FCFB9#_ftn6) 3\. Rechtsstaat The German conception of the positivistic Rechtsstaat emerged with the failure of the bourgeois revolution attempted in Germany in 1848. Frustrated in their efforts to establish a constitutional democracy, the German bourgeoisie settled for a guarantee of state rule through law as opposed to arbitrary or personal rule by the sovereign. In its positivistic embodiment, therefore, Rechtsstaat is better translated as "state rule through law" than as "rule of law." By insisting that Germans be ruled through laws and that the adjudicative function be separate from the legislative, the positivistic Rechtsstaat comes very close to the ideal of law as separate from politics.[\[1\]](applewebdata://458A331D-26E0-42B9-9037-2E3361087C15#_ftn1) However, the positivistic Rechtsstaat may have suited Germany\'s legal and political reality at the end of the nineteenth century, it no longer fit post-World War I Germany following the adoption of the Basic Law. Some contemporary German scholars have argued that Germany is better described today as a Verfassungsstaat, which is to say, "state rule through the constitution," than as a Rechtsstaat. But because the Verfassungsstaat encompasses not only constitutional rules and standards but also constitutional values such as human dignity (explicitly enshrined in article I of the Basic Law) and because it prescribes not only subjective rights but also an objective order, the German Constitutional Court has assumed an expansive role that casts it, at least in part, as a positive legislator prone to dictating policy.[\[2\]](applewebdata://E0EAC92B-549C-4B27-8F4B-8BEB799F61B8#_ftn1) The concept of *Rechtsstaat*, which has been shaped for over 100 years in the German doctrine, legislation, and jurisprudence of the Federal Constitutional Court, is complex and multifaceted. It is difficult to reduce it to any definition or unambiguous definition. As part of the concept of the rule of law there is a formal rule of law which defines the principles of the law - based state. The statute become the basic source of law, and the legal order should be based on it. The statute is binding on all public authorities. Courts, including administrative courts, play a special role in guaranteeing the legality of the state\'s actions.[\[3\]](applewebdata://5184070F-458D-47DD-9C95-AF768465DD94#_ftn1)In the state of law understood in this way, there were also material elements, primarily principles expressing human rights. However, they were not binding. In the Weimar Constitution, constitutional rights had a programmatic character. Their normative content was decided by the ordinary legislator. There was no guarantee of basic human rights and basic principles of the political system at the constitutional level. After World War II, this was considered a significant lack of the rule of law, enabling it to be transformed into a totalitarian state. The **substantive concept** of the rule of law was unavoidable and meant the acceptance of the inviolable and inalienable human dignity as the source of constitutional freedoms and rights; recognition that these rights are binding on all public authorities; introduction of  judicial review; implementation by the Constitution of the concept of a democracy capable of defending itself. The principle of constitutionalism has the greatest influence on the material shape of the rule of law. In a state ruled by law the Constitution is a fundamental law.  4\. État de droit Although the French expression *État de droit* is the literal translation of the German expression *Rechtsstaat* the two are no synonymous[\[1\]](applewebdata://FCA7BCE5-39B1-42B9-A634-225F19B7E7C4#_ftn1). Actually, what comes closest to the German *Rechtsstaat* is the French *État legal*. The main difference between the positivistic *Rechtsstaat* and the *État legal* is that whereas both refer to a system of laws made by legislators, only the *État legal* requires that the legislators in question be democratically elected. *État legal* can thus be translated as "state rule through democratically enacted laws."[\[2\]](applewebdata://FCA7BCE5-39B1-42B9-A634-225F19B7E7C4#_ftn2) In other words, In post- Revolutionary France, *État legal* embodied the democratic will of the nation as that will was expressed by legislation. This conception left no room for government action outside enacted law and compares to the legal positivism of the German *Rechtsstaat*[\[3\]](applewebdata://FCA7BCE5-39B1-42B9-A634-225F19B7E7C4#_ftn3). According to the constitutional vision launched by the French Revolution, law is the product of the legislative majority, while constitutional objectives and constraints are cast as exclusively political. Thus, a parliament enacts laws that are conceived as expressing the general will of the polit and constitutional imperatives, such as those enumerated in the 1789 Declaration of the Rights of Man and the Citizen, are supposed to constrain legislators with respect to the legislative choices they are called upon to make[\[4\]](applewebdata://FCA7BCE5-39B1-42B9-A634-225F19B7E7C4#_ftn4).  It was to remedy this deficiency that the *État de droit* was invoked to supplement the *État legal*. The precise task for the *État de droit* was to transform constitutional guarantees that theretofore had been political in nature into legal guarantees. In short, the *État de droit* was designed to juridify the constitution, by transforming "constitution as politics" into "constitution as law." Thus, the combination of the *État legal* with the État de droit is closer to the *Verfassungsstaat* than to the *Rechtsstaat*. Unlike the *Verfassungsstaat*, however, the legal regime framed by the *État de droit* does not seek to constitutionalize politics; it merely subjects the realm of politics to constitutional constraints that have the force of law. In other words, whereas in the Verfassungsstaat, the constitution partially replaces politics as the source of lawmaking, in the *État de droit*, politics remains the exclusive source of lawmaking, though the legitimate bounds of political lawmaking are set by the constitution as law[\[5\]](applewebdata://FCA7BCE5-39B1-42B9-A634-225F19B7E7C4#_ftn5). 5\. The British model *The British model* \* * The British see the source of the rule of law in documents such as the Magna Carta (1215) and the Bill of Rights (1689). However, the concept of Rule of Law became a legal term thanks to the work of AV Dicey under the title \"Introduction to the Study of the Law and of the Constitution.\"  Please read three papers which explain the evolution and meaning of the rule of law in the UK. 6\. The US model The desire to establish "an empire of laws and not of men" was the founding commitment of the American Constitutional project, but it had deep and well-remembered foundations in the history of  the common law and republican political ideology[\[1\]](applewebdata://38901ADD-E162-460D-A4AF-40480572C1F8#_ftn1). The distinction between a substantively just rule-of-law society, governed by laws and institutions dedicated to the general welfare, and an unjust society, whose laws and institutions serve private interests, was reiterated by the Preamble to the U.S. Constitution, which declared as its purposes to "establish Justice... promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."[\[2\]](applewebdata://38901ADD-E162-460D-A4AF-40480572C1F8#_ftn2) The U.S. Constitution came into force on the 9th of March of 1789.  The supremacy of law was declared in the Constitution that states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The Constitution includes a number of specific prohibitions against violations of the rule of law.[\[1\]](applewebdata://A3423748-F0FE-4548-B4C7-5F187AEC5F20#_ftn1) The Constitution forbids the United States to suspend the writ of habeas corpus (except in cases of rebellion or invasion), prohibits bills of attainder and ex post facto laws, and requires all public expenditures be pursuant to appropriations approved by law.[\[2\]](applewebdata://A3423748-F0FE-4548-B4C7-5F187AEC5F20#_ftn2) Nor may any of the American states in their separate legislatures pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.[\[3\]](applewebdata://A3423748-F0FE-4548-B4C7-5F187AEC5F20#_ftn3) The Constitution also requires the United States to guarantee a "republican form of government" to each state.[\[4\]](applewebdata://A3423748-F0FE-4548-B4C7-5F187AEC5F20#_ftn4) Every judge of the United States holds office "during good behavior,"[\[5\]](applewebdata://A3423748-F0FE-4548-B4C7-5F187AEC5F20#_ftn5) which is to say, for life, unless impeached by the House of Representatives and convicted by the Senate of the United States.[\[6\]](applewebdata://A3423748-F0FE-4548-B4C7-5F187AEC5F20#_ftn6) Other features of the US government is the separation of powers and the due process of law. The last means that "no person shall\... be deprived of life, liberty, or property, without due process of law." Judicial review is not included in the US Constitution. The landmark case which established the doctrine of judicial review is *Marbury v. Madison* ((1803) 1 Cranch 137 (2 Law Ed 60), 5 US 137 (1803)) in which  the U.S. Supreme Court first declared an act of Congress unconstitutional. The rule of law in the United States has both procedural and substantive components. On the one hand, there are the principles and fundamental rights without which there can be no liberty or justice. On the other, there are the forms and structures of government that protect the making, execution, and adjudication of the laws from being corrupted by our fallible humanity. The rule of law defines America\'s constitutional ideal.[\[1\]](applewebdata://670303E1-27D5-4066-9960-9E80353BF895#_ftn1) An example of formal reasoning: In *Dred Scott v. Sanford* (60 U.S. (19 How.) 393 (1857)) the court exercised formal legal reasoning, finding that no person of African ancestry could claim citizenship in the United States. Slaves could not bring suit in federal court as they did not have claim to freedom, were property and not citizens.