Abstract
The term rule of law is closely related to both constitutionalism and the rule of law, and it refers to the political situation and not to any particular legal law. According to the rule of law, all people are subject to the law, including legislators, law enforcement, and judges. In this sense, it opposes tyranny or oligarchy, where rulers stand above the law. Lack of the rule of law can be found in both democracies and monarchies where laws are not taken into account. The rule of law is at stake where the government does not have the appropriate corrective mechanism to restore it.
TopIntroduction
The rule of law is a legal doctrine according to which no one can be above the law, everyone is equal before the law, no one can be punished except in the manner prescribed by law and only for its violation. The rule of law implies that all by-laws and enforcement acts are subject to and do not contradict the law. According to natural law theory, the rule of law requires that all normative legal acts (including the constitution and legislation) and all activities of state power be subordinated to the protection of dignity, freedom, and human rights. A state in which the rule of law is implemented is called a legal state.
The concept of the rule of law has been known since ancient times when the ancient Greek philosopher Aristotle wrote: “The law must rule” (Aristotle).
Main Principles
In modern philosophy of law, the rule of law is opposed to the idea that individual officials or authorities can be above the law or have excessive powers and thus exercise arbitrariness. Rule of law doctrine requires rules to be published, stable, and predictable in their application. It requires the accessibility of the justice system and its independence from the executive and legislative branches of government so that judges make decisions only based on facts and laws. Modern versions of the doctrine also hold that members of society should be able to participate in the creation and modification of the laws that govern their behavior.
Two main concepts of the rule of law can be distinguished: formal and substantive (“thin” and “thick” in the English tradition; associated with the theories of legal positivism and natural law, respectively) (Chitadze, 2016). The formal interpretation of the rule of law does not make judgments about the fairness of the rules themselves but defines the procedural attributes that a legal system should have. This approach seeks to isolate the efficiency and predictability of the system from ethical questions about its responsibility for the result. Meaningful interpretations of the rule of law make demands on the content of laws and explicitly include fundamental human rights, which, as these concepts argue, follow from the highest unwritten principles of legality, morality, and justice. Such interpretations were greatly strengthened after the Nuremberg trials, which recognized the leadership of Nazi Germany as criminals despite their formal observance of the law, as well as after the human rights work of Mahatma Gandhi and Martin Luther King. In order not to confuse a formal interpretation with a substantive one, the Parliamentary Assembly of the Council of Europe recommends using the term “rule of law” for the former, and “rule of right” for the latter (Jurgens, 2013).
As defined in the 2004 UN Secretary-General's report The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, “The rule of law is a concept at the very heart of the UN's mission. It is a principle of governance in which all persons, institutions, and entities, public and private, including the State itself, function under laws that have been publicly enacted, are equally enforced and independently enforced by the judiciary, and are compatible with international human rights norms and standards” (UN, 2004).
The Ukrainian legal scholar A. N. Kostenko, based on the theory of social naturalism, proposed to interpret the principle of the rule of law as “the principle of the rule of laws of natural law” (Aleksidze, 2016).
Key Terms in this Chapter
Natural Rights: Those rights that are not dependent on the laws or customs of any particular culture or government, and so are universal , fundamental and inalienable (they cannot be repealed by human laws, though one can forfeit their enjoyment through one's actions, such as by violating someone else's rights). Natural law is the law of natural rights.
Rule of Law: The political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws.
Civil Society: A community that embraces shared norms and ethical standards to collectively manage problems without coercion and through peaceful and democratic procedures for decision making aimed at improving human welfare.
UN Human Rights Council: Created in 2005, has a mandate to investigate alleged human rights violations.
Office of the United Nations High Commissioner for Human Rights: Commonly known as the Office of the High Commissioner for Human Rights (OHCHR) or the United Nations Human Rights Office, is a department of the Secretariat of the United Nations that works to promote and protect human rights that are guaranteed under international law and stipulated in the Universal Declaration of Human Rights of 1948. The office was established by the United Nations General Assembly on 20 December 1993 [3] in the wake of the 1993 World Conference on Human Rights.
International Human Rights Law (IHRL): The body of international law designed to promote human rights on social, regional, and domestic levels.
Political Tolerance: Means accepting and respecting the basic rights and civil liberties of persons and groups whose viewpoints differ from one's own. All citizens, including political leaders, have a responsibility to practise political tolerance in their words and actions. As a clear rejection of “might makes right,” political tolerance is a key principle of democracy.
Human Rights: The political rights and civil liberties recognized by the international community as inalienable and valid for individuals in all countries by virtue of their humanity.
Constitutional Democracy: Government processes that allow people, through their elected representatives, to exercise power and influence the state’s policies.
Equality Before the Law: Also known as equality under the law, equality in the eyes of the law, legal equality, or legal egalitarianism, is the principle that all people must be equally protected by the law.
Universal Declaration of Human Rights (UDHR): An international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. Drafted by a UN committee chaired by Eleanor Roosevelt, it was accepted by the General Assembly as Resolution 217 during its third session on 10 December 1948 at the Palais de Chaillot in Paris, France.
Legitimacy: Conformity to the law or to rules; ability to be defended with logic or justification; validity.
Legal Rights: Those rights bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws). The concept of positive law is related to the concept of legal rights.
European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms): An international convention to protect human rights and political freedoms in Europe.
Legality: In respect of an act, agreement, or contract is the state of being consistent with the law or of being lawful or unlawful in a given jurisdiction, and the construct of power. According to the Merriam-Webster Dictionary, legality is 1: attachment to or observance of law. 2: the quality or state of being legal.
Democracy: A form of government in which the people have the authority to deliberate and decide legislation (“direct democracy”), or to choose governing officials to do so (“representative democracy”). Who is considered part of “the people” and how authority is shared among or delegated by the people has changed over time and at different rates in different countries, but over time more and more of a democratic country's inhabitants have generally been included. Cornerstones of democracy include freedom of assembly, association and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty, and minority rights.