Seite wählen

The rule of law applies not only within national communities, but increasingly also among themselves, but in this area its application remains under-theorized (for a useful discussion, see Crawford 2003). Much of the work that has been done on the international rule of law simply uncritically adopts the views of those at the national level that the rule of law requires determination, clarity and predictability (see Chesterman 2008). However, this can be misunderstood when we talk about states and not individuals as legal entities (Waldron 2011b). States are much better informed of their legal requirements than men and women in society, as they are parties to treaties and practices that establish international law. (Perhaps, however, this point does not apply to the same extent when we consider the dark depths of customary international law.) F.A. Hayek trained as an economist, but he also sparked an interest in the relationship between legal structures and forms of economics. Hayek`s work on the rule of law took place in two phases: (1) from his war book The Road to Serfdom (1944) to the Constitution of Freedom (Hayek 1960); and (2) the slightly different representation of his trilogy Law, Legislation and Liberty (1973), a representation that better reflects the spirit of the common law and is hostile to the role of legislation. However, the distinction may not be as clear. Even the rule of law seems to imply that leaders accept something like the formal discipline of legality. Unless the orders issued by the State are general, clear, forward-looking, public and relatively stable, the State does not decide by law. Thus, this thin version of legality still has moral significance in the respect it gives to the human need for clarity and predictability. The rule of law „can be a means like a government. stabilizes and secures expectations“ (Goodpaster 2003: 686).

Even if its use for the purposes of the state remains instrumental, it includes what Fuller called a reciprocal link with the goals of those who are governed: the latter are assured that the rules proclaimed are those used to evaluate their actions (see also Winston 2005:316). What is said here about the connection between dignity and Fuller`s formal principles can be said even more about the connection between procedure and dignity. Procedural principles capture a deep and important sense that the law is a kind of government of people that treats them as if they had their own point of view that they could present through the application of norms to their behaviour and situation. Applying a standard to a human individual is not like deciding what to do with a rabid animal or a dilapidated house. It`s about paying attention to a point of view. As such, it embodies a crucial idea of dignity – respect for the dignity of those to whom the norms are applied, as beings capable of explaining themselves. The rule of law includes a set of formal and procedural principles that deal with how a community is governed. Formal principles concern the generality, clarity, publicity, stability and foresight of the standards that govern a society. Procedural principles concern the processes by which these standards are administered and institutions – such as the courts and an independent judiciary that requires their administration. In some cases, the rule of law also includes certain material ideals, such as the presumption of freedom and respect for private property rights. But these are much more controversial (see section 1 below). And indeed, as we will see, there is a lot of controversy about what the rule of law requires.

Thomas Hobbes can be considered a theoretician of the rule of law. In a society whose members disagree on property, he considered it conducive to peace for the ruler of a society „to establish and publicly explain common rules for all peoples, through which each person can know how to call his own, what another can do“ (Hobbes 1647: Bk. II, chap. 6, Section (ix). But Hobbes also thought that it would undermine peace—in fact, it would undermine the logic of sovereignty—if the ultimate legislator were bound by the laws he applied to his subjects (Hobbes 1991 [1651]:184). Debating what the rule of law requires is partly the 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 the epitome of a stable constitution that has been rooted in a country`s politics for centuries. When Aristotle (Policy 1287b) opposed the rule of law to the rule of men, he dared to believe 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 et seq.) sought to distinguish the rule of law from the rule of law by identifying the former with something more similar to the evolutionary development of the common law, less constructive and less likely to be deliberately controlled than the enactment of a law.

There is also an ongoing debate about the relationship between the law and the mechanisms of government. For some, formal discretion is inconsistent with the rule of law; For others, it depends on how discretion is formulated and allowed. For some, the final decision of a court comes down to the rule of law; For others who are aware of the politics of the judiciary, the decision of the courts (especially a politically divided court) is as much an example of human government as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies). These ideas claim to bring a certain touch of reality into our discussions about freedom. In the circumstances of modern life, there may be no escape from legal constraints, but freedom is still possible if people know in advance how the law will work and how they should act to avoid its application. Knowing in advance how the law will work can make plans and circumvent its requirements (see Hayek 1960:153 and 156–7). And knowing that you can count on the protection of property and personal rights by law gives every citizen some certainty about what they can count on when dealing with other people. The rule of law is therefore violated when the standards applied by civil servants do not correspond to the standards made public to citizens, or when officials act on the basis of their own discretion and not on the basis of standards established in advance. If such action becomes endemic, not only will people`s expectations be disappointed, but they will be increasingly unable to form expectations they can rely on, and the horizons of their planning and economic activity will shrink as a result. Beyond these generalities, what the rule of law requires is controversial.

This is partly because the rule of law is a working political idea, both the property of ordinary citizens, lawyers, activists and politicians, as well as the lawyers and philosophers who study it. The characteristics to which ordinary people draw attention are not necessarily the characteristics that legal philosophers have emphasized in their academic conceptions. Legal philosophers tend to emphasize the formal elements of the rule of law, such as rule by general norms (not by specific decrees); govern by pre-established standards (not retrospective decrees); govern by standards made public (not hidden in the offices of the administration); and govern according to clear and specific legal norms (norms whose meaning is not so vague or questionable that those subject to them are at the mercy of official discretion). But that`s not necessarily what ordinary people have in mind when they call for the rule of law; They often think of the absence of corruption, the independence of the judiciary and a presumption in favour of freedom. John Locke, in the second of his two treatises of government (1689), emphasized the importance of governance through „permanent laws established, promulgated, and known to the people.“ He compared this to the rule by „exemporative 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 permanent laws from arbitrary decrees, it was not the oppressive feeling of „arbitrariness“ he had in mind. In this context, something is arbitrary, because it is contemporary: there is no note of it; The sovereign simply discovers it as he progresses. 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. Here are some textual definitions of the rule of law and what they may mean in certain contexts.

However, most people who value the rule of law do not accept this approach. If a law is properly formulated (if it is clear, comprehensible and generally expressed) and if it is promulgated prospectively, and if it is administered impartially and in accordance with due process, they will call it a fully appropriate exercise within the framework of the rule of law. In fact, this is what many scholars mean by the rule of law: people are governed by measures that are predetermined in general terms and also applied according to the conditions under which they were publicly proclaimed. The argument that it should be set aside because it is not sufficiently opposed to human domination seems perverse. Finally, an analytical question. What is the relationship between the rule of law and the concept of law? One case – no doubt controversial – can be cited for bringing the two together (see Waldron 2008 and Simmonds 2008). .