Rule of law and guarantees of legality

Rule of law

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

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 Anglo-American 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.

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.

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

British jurist A. V. Dicey popularized the phrase "rule of law" in 1885. Dicey emphasized three aspects of the rule of law:

– 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

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

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

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

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

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

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

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

The judicial human rights are:– (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

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

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

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 over-regulation, just as through an unclear and confusing system of laws.

Guarantees of legality I.

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.

Invalidity of legal act Review of the decisions of courts and

administrative authorities Review of normative acts The Public Defender of Rights