Essays On The Rule Of Law

Essays On The Rule Of Law-61
Contestation about what the Rule of Law requires is partly a product of the fact that law itself comprises many things, and people privilege different aspects of a legal system.

Also, the law should be the same for everyone, so that no one is above the law, and everyone has access to the law’s protection.

The requirement of access is particularly important, in two senses.

First, law should be epistemically accessible: it should be a body of norms promulgated as public knowledge so that people can study it, internalize it, figure out what it requires of them, and use it as a framework for their plans and expectations and for settling their disputes with others.

Secondly, legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes, and protect them against abuses of public and private power.

For some the final determination of a court amounts to the Rule of Law; for others, aware of the politics of the judiciary, rule by courts (particularly a politically divided court) is as much an instance of the rule of men as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies).

The fact that the Rule of Law is a controversial idea does not stop various organizations from trying to measure its application in different societies.Laws are laid down in general terms, well in advance of the particular cases to which they may be applied. But these cases should be kept to a minimum and legal training and legal institutions should continue to play a role in the way they are disposed of.Aristotle’s discussion of the general desirability of rules and his treatment of (1689) emphasized the importance of governance through “established standing Laws, promulgated and known to the People”.The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society.The procedural principles concern the processes by which these norms are administered, and the institutions—like courts and an independent judiciary that their administration requires.Groups like the World Justice Project concoct criteria and indexes of the Rule of Law, ranking the nations of the earth in this regard.Countries like Norway and New Zealand rank at the top of the Rule-of-Law league and countries like Zimbabwe and Afghanistan at the bottom (see Other Internet Resources).They confine the focus of the Rule of Law to formal and procedural aspects of governmental institutions, without regard to the content of the policies they implement. As we shall see, some substantive accounts have been developed, which amount in effect to the integration of the Rule of Law with some of these other ideals.The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, , or purely discretionary manner on the basis of their own preferences or ideology.Those are rules of law, but Rule of Law is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance.The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed.


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