Transcript Rule of law and guarantees of legality

Rule of law and guarantees of
legality
Rule of law
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The rule of law is the principle that governmental
authority is legitimately exercised only in accordance
with written, publicly disclosed laws adopted and
enforced in accordance with established procedure.
This maxim is used to describe certain
characteristics about the proper functioning of a
legal system and its relationship with political power
and individuals.
Rechtsstaat
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Rechtsstaat is a concept in continental European legal thinking,
originally borrowed from German jurisprudence, which can be
translated as "legal state", "state of law", "state of justice", or "state
of rights".
It is a "constitutional state" in which the exercise of governmental
power is constrained by the law, and is often tied to the AngloAmerican concept of the rule of law.
In a Rechtsstaat, the power of the state is limited in order to
protect citizens from the arbitrary exercise of authority. In a
Rechtsstaat the citizens share legally based civil liberties and they
can use the courts. A country cannot be a liberal democracy
without first being a Rechtsstaat.
History – I.
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In Western philosophy, the Ancient Greeks initially regarded the
best form of government as rule by the best men. Plato
advocated a benevolent monarchy ruled by an idealized
philosopher king, who was above the law.
Plato nevertheless hoped that the best men would be good at
respecting established laws, explaining that "Where the law is
subject to some other authority and has none of its own, the
collapse of the state, in my view, is not far off; but if law is the
master of the government and the government is its slave, then
the situation is full of promise and men enjoy all the blessings
that the gods shower on a state."
History II.
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More than Plato attempted to do, Aristotle flatly opposed
letting the highest officials wield power beyond guarding and
serving the laws. In other words, Aristotle advocated the rule of
law:
„It is more proper that law should govern than any one of the
citizens: upon the same principle, if it is advantageous to place
the supreme power in some particular persons, they should be
appointed to be only guardians, and the servants of the laws.“
According to the Ancient Roman statesman Cicero, "We are all
servants of the laws in order that we may be free."
Albert Dicey
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British jurist A. V. Dicey popularized the phrase "rule
of law" in 1885. Dicey emphasized three aspects of
the rule of law:
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No one can be punished or made to suffer except for a
breach of law proved in an ordinary court.
No one is above the law and everyone is equal before the
law regardless of social, economic, or political status.
The rule of law includes the results of judicial decisions
determining the rights of private persons.
Categorization of interpretations
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Different people have different interpretations about
exactly what "rule of law" means.
The phrase „Rule of Law“ has become meaningless
thanks to ideological abuse and general over-use, but
nevertheless this phrase has and in the past had specific
and important meanings.
Among modern legal theorists, most views on this subject
fall into three general categories: the formal approach,
the substantive approach, and the functional approach.
Formal conception
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The "formal" interpretation is more widespread than the
"substantive" interpretation.
Formalists hold that the law must be prospective, well-known,
and have characteristics of generality, equality, and certainty.
Other than that, the formal view contains no requirements as
to the content of the law.
This formal approach allows laws that protect democracy and
individual rights, but recognizes the existence of "rule of law" in
countries that do not necessarily have such laws protecting
democracy or individual rights.
Substantive conception
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Substantive conceptions of the rule of law
go beyond the formal requirements and
include certain substantive rights that are
said to be based on, or derived from, the rule
of law
Additional requirements may include:
democracy, individual rights and social
welfare
Functional conception
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The functional interpretation of the term "rule of law",
consistent with the traditional English meaning,
contrasts the "rule of law" with the "rule of man.„
According to the functional view, a society in which
government officers have a great deal of discretion
has a low degree of "rule of law", whereas a society in
which government officers have little discretion has a
high degree of "rule of law".
The rule of law is thus somewhat at odds with flexibility,
even when flexibility may be preferable
The principles of the rule of law
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Independence and impartiality of the judiciary
Independence means that the judiciary is free of
external pressure, and that it is not controlled by the
other two branches of government, especially by the
executive branch.
Impartiality means that the judiciary is not interested
in the outcome of the case in favor of any one of the
participants.
Legal certainty
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Legal certainty means that the State has the duty to respect and
apply – in a foreseeable and consistent manner – the laws it has
enacted.
Foreseeability means that the law must be foreseeable as to its
effects. Therefore, the laws must be formulated clearly and with
sufficient precision to enable the individual to regulate his or her
conduct.
In this context it is very important that laws that confer a discretion
on a State authority, must indicate the scope of that discretion and
the manner of its exercise with sufficient clarity. Consequently, the
individual has adequate protection against arbitrariness.
Non-discrimination and equality
before the law
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Non-discrimination means that the laws refrain from discriminating
against certain groups. Any discrimination under the law is prohibited
and all persons have guaranteed equal and effective protection
against discrimination on any ground.
Such grounds can be race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
Equality before the law means that each individual is subject to the
same laws, with no individual or group having special legal privileges.
All persons, regardless of race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other
status, are to be treated the same before the law.
Respect for (judicial) human rights
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The judicial human rights are:
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(1) the right of access to justice,
(2) the right to a legally competent judge,
(3) the right to be heard,
(4) inadmissibility of double jeopardy (ne bis in idem),
(5) the legal principle that measures should not have retroactive
effect as well as the prohibition of analogy,
(6) the right to an effective remedy for any arguable claim,
(7) anyone accused of a crime is presumed innocent until proved
guilty,
(8) the right to a fair trial
Separation of powers
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The principle of separation of powers requires that the
three branches of government (legislative, executive and
judicial authorities) must fulfill independent yet
interdependent functions that should remain separated,
with mechanisms of mutual checks and balances.
Thus, at no time should all authority rest with a single
branch of government or should a single branch of
government dominate.
Instead, power has to be measured, apportioned, and
restrained among the three governmental branches.
State is bound by law
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The principle that the State is bound by the law
requires that the State acts on the basis of, and in
accordance with, the law.
This means that all decisions and acts of public officials
must be authorized by law and that all legal subjects,
especially State authorities and officials, should be
bound by the law when carrying out their official
functions.
So policy and decision making must respect the limits
and the guidance provided by the law.
Substantive coherence of the legal
framework
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A substantive coherence of the legal framework
means that the constitution (or the constitutional
principles in case of an unwritten constitution) has
priority over other laws, and that there is a clear
hierarchy and consistency of norms.
Legal security for the citizens may also be
endangered by a multitude of laws and overregulation, just as through an unclear and confusing
system of laws.
Guarantees of legality I.
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The principle of legality is the legal ideal that requires
all law to be clear, ascertainable and non-retrospective.
It requires decision makers to resolve disputes by
applying legal rules that have been declared
beforehand, and not to alter the legal situation
retrospectively by discretionary departures from
established law.
It is closely related to legal formalism and the rule of
law
Guarantees of legality II.
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Invalidity of legal act
Review of the decisions of courts and
administrative authorities
Review of normative acts
The Public Defender of Rights