7. Rule of law (2016)Apunte Inglés
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7. Democracy and the rule of law
Definition of “rule of law”
Three points of view:
1. The authority and influence of law in society, especially when viewed as a constraint on individual and
institutional behavior (we have to build our behavior according to the content of the rules).
2. It represents the ideal state of a legal system, under which people can lead their lives with sufficient knowledge of when and how their government can exercise its coercive powers.
3. It is the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and procedures.
It stands in contrast to any other system where the rules are held above the law, for example, by a divine right or any other ground. (Dictatorship, autocracy, oligarchy).
In respect of individuales, the law usually proscribes or prohibits an activity, thus, if activities are not proscribed, then they can be engaged quite lawfully. Therefore, we need to respect the prohibitions. If the rule of law works in a system, people know what the limits and prohibitions are, and we can foreseen the consequences of not obeying the law.
Requirements • Laws must be made public.
• Laws are general.
• Laws are clear.
• Laws are responsable stable.
• Laws are not retrospective but prospective.
• Laws are consistent (coherent).
• Laws don’t demand impossible conduct.
• Particular government actions are subject to review by independent courts to ensure their accordance with general laws (equity). In a system where the rule of law works, the government is as subject to law as individuals.
• Laws do not have an extra-territorial effect.
To sum up, laws need to be EQUAL (everyone should be treated the same irrespective of wealth or position, gender, color or race) + CERTAINTY (law needs to be certain in its scope and effect if people are to know how to order their affairs and to respect the law.
But, does equality mean justice? What happens when law fails to take into account differences in age, sex, race, color, abilities, status, education, wealth, etc.? • Discrimination on these or other grounds should not be tolerated.
• Recognition of human differences must be retained if justice (in the sense of fairness), is to be achieved (positive discrimination).
Does certainty mean rigidity? When certainty slides into rigidity, the consequence is that the law and the legal system fail to meed changing social needs. So, there has to be a balance between certainty and flexibility.
1 Approaches FORMALIST APPROACH (“thin” definiton) Rule of law is defined only by its specific procedural attributes but not by its content —> public declaration of the law, prospective application, generality, equality, certainty, etc. The list listed before.
The content doesn’t matter. The country that applies this approach, does it because the rule of law is working, not because of the content.
SUBSTANTIVE APPROACH (“think” definition) Rule of law is defined also by the “fairness” of the law itself. This principle goes beyond the procedural attributes and include certain substantive rights that are said to be based on, or derived from, the rule of law. In this approach, the content is important. (The rule of law necessarily entails protection of certain individual rights —> constitutionalism).
FUNCTIONAL APPROACH Contrasts the “rule of law” with the “rule of man”. The grater deal of discretion by the government officers when applying the law, the lower degree of rule of law. Or, the less discretion by the government officers when applying the law, the higher degree of rule of law. If there are very specific descriptions of what our behavior should be like, we should obey the law and the system would work. Flexibility when applying law is not a good idea.
The Rule of Law in the world The rule of law has been considered the key dimension of the good governance of a country. Rule of law is the extent to which agents have confidence and obey the rules of a society, and in particular, the quality of contract enforcement, the police and the courts, as well as the likelihood of crime and violence.
Some causes… • The recognition of the rule of law.
• The degree of judicial discretion.
• The gap between the rule of law rhetoric and reality.
• The real interest in a transition ot a market economy.
• The more or less extension, detail and precision of the legislation.
Rule of law and economic development The compatibility of economic and financial decisions within existing constitutional law frameworks relies among other factors on… • the existence of a corrupted judiciary (by the government or by private actors).
• The availability of an effective court system to be used by the civil society.