The Rule of Law

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A "thick" definition delineates positively the rule of law as incorporating such elements as a strong constitution, an effective electoral system, a commitment to gender equality, laws for the protection of minorities and other vulnerable groups and a strong civil society.

The rule of law, defended by an independent judiciary, plays a crucial function by ensuring that civil and political rights and civil liberties are safe and that the equality and dignity of all citizens are not at risk. It also helps protect the effective performance of the various agencies of electoral, societal and horizontal accountability from potential obstructions and intimidation by powerful State actors.

This "thick" definition of the rule of law differs from "thinner" definitions that place emphasis on the procedures through which rules are formulated and applied.

Examples of the tenets within a "thick" definition were provided by the then United Nations Secretary-General, Kofi Annan, in his reports on the rule of law. Annan stressed that, for the United Nations, the rule of law is:. It requires as well measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.

Referring to this definition in his Guidance Note on Democracy, Secretary-General Ban Ki-moon added that the United Nations provides expertise and support to "the development of legislation and the strengthening of, in particular, legislative, executive and judicial institutions under such principles to ensure that they have the capacity, resources and necessary independence to play their respective roles".

The Rule of Law, not the Rule of Politics: Commentary on the Cherry/Miller No 2 Judgment

Over the years, the United Nations has fostered the rule of law at the international level through the consolidation and development of an international framework of norms and standards, the establishment of international and hybrid courts and tribunals and non-judicial mechanisms. It has refined its framework for engagement in the rule of law sector at the national level through the provision of assistance in constitution making; the national legal framework; institutions of justice, governance, security and human rights; transitional justice; and the strengthening of civil society.

Furthermore, his Guidance Note on United Nations Assistance to Constitution-making Processes outlined the components of constitution-making processes and recognized that such processes are a central aspect of democratic transitions. A practical example of the importance of the rule of law for democracy building is the fact that the rule of law is a fundamental principle embraced in most modern democracies. Constitutions contain the fundamental and, most often, supreme law of the State, and the rule of law dictates the enforcement of those principles above all other laws.

Constitutions also preserve fundamental principles and values by making the process of amendment burdensome. Some constitutions ensure the permanence of certain principles and values by prohibiting amendments. The judiciary, which applies the law to individual cases, acts as the guardian of the rule of law. Thus, an independent and properly functioning judiciary is a prerequisite for the rule of law which requires a just legal system, the right to a fair hearing and access to justice. Constitutions do much more than establish a government and regulate its relationships with citizens.

In many countries, they have also become crisis management tools. The benefits of constitutions designed for conflict-affected and deeply divided States hinge on their ability to reconcile groups, to address intolerable grievances and to prevent further polarization and conflict deterioration. Also in this area, national ownership is of the utmost importance. The choice of process should be left to national constitution builders who are able to prevail in the local context.

Constitutional design suited to the requirements of managing conflict has had some degree of success. At the same time, other factors such as economic inequality are increasingly important determinants in new demands for constitution building.

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Electoral justice provides another example of the linkages between democracy and the rule of law. In any response to this question , it may be useful to make a distinction between ROL as providing constraint-languages and facilitative languages. As constraintlanguages, fully informed by the logics and languages of contemporary human rights, ROL speaks to what sovereign power and state conduct may not, after all, do.

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State powers ought to be differentiated; no single public authority ought to combine the roles of the judge, jury, and executioner 2. Governance via undeclared emergencies remains violative of ROL values and illegitimate 4. Constitutionally declared states of emergency may not constitute indefinite practices of governance and adjudicative power ought not to authorize gross, flagrant, ongoing, and massive violation of human rights and fundamental freedoms during the states of emergency 5.

The delegation of legislative powers to the executive ought always to respect some limits to arbitrary sovereign discretion 6. Governance at all moments ought to remain limited by regard for human rights and fundamental freedoms 7. Governance powers may be exercised only within the ambit of legislatively defined intent and purpose 8.

Towards these ends, the State and law ought not to resist, or to repeal powers of judicial review or engage in practices that adversely affect the independence of the legal profession. These "oughts", far from constituting any fantastic wish-list, define the terrain of ongoing contests directed to inhibit unbridled state power and governance conduct. The question is not whether these "oughts" are necessary but whether they are sufficient. It is here that we enter the realms of the ROL facilitative languages which leave open a vast array of choices for the design and detail of governance structures and processes.

These choices concern the processes of composing legitimate political authority, forms of political rule, obligations of those governed and of those who govern. The ROL does not quite address this dimension. Assuming, however, that universal adult franchise constitutes a core ROL value, the ROL seems equally well served by both the "first past the post" or "proportional" and "preferential" voting systems and related variants.

Neither the thin nor the thick ROL versions offer any precise norms and standards for the delimitation of constituencies in ways that avoid gerrymandering representation. Elections cost big money for political leaders and parties at fray; what "regulation" may violate the liberal ROL freedom of speech and association values remains an open question.

So do appeals to forms of "hate speech" in the competitive campaign politics.

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What is the Rule of Law

The dominant ROL discourse moreover remains indifferent to the question of affirmative programs of legislative representation, which modify the right to contest elections for cultural and civilizational minority groups and coequal gender representation. The ROL languages, for weal or woe, insufficiently address the notion of participation, do not extend so far as to prescribe means of constitutional change such as referenda, or the right to recall of errant or corrupt legislators. As concerns structures of governance, ROL remains rather indifferent to choices amongst federalism over unitary , republican over monarchical , secular over theocratic , flexible over rigid , constitutional formats.

Nor do these foreclose choices concerning the scope and method for amending constitutions. The composition, of judicial power and of the administration of justice methods of judicial appointment, tenure, and removal of judges, constructions of judicial hierarchies, etc. The celebrated constraints upon lawmaking legislative power do not entail any ethical obligation to make laws for instance, a public 'right' to have a law made for disadvantaged, dispossessed, and deprived peoples; these remorseless non-decisions impact upon many a human, and human rights, future.

However, this arbitrariness is overridden by the disciplinary globalization where the South States have mandatory obligations to make law favouring the communities of direct foreign investors over those of their own citizens; these obligations stand fostered by transnational corporations and international financial institutions which themselves owe very little democratic accountability and human rights responsibilities. Finally, without being exhaustive, how may ROL address its Other? A multitude of mass illegalities often historically generate forms of citizen understandings that eventually redefine interpretations of the ROL.

Inflected by indeterminate notions of popular "sovereignty", these divergent insurgencies signify terrains of struggle of the Multitudes against the Rule of the Minuscule. This summary checklist of anxieties is not intended to suggest that we dispense altogether with the ROL languages and logics. Rather, it invites sustained labours that subject the normative and ideological histories and frontiers of ROL with very great care and strict scrutiny. Towards this end, I reiterate my one sentence summation: ROL is always and everywhere a terrain of peoples' struggle incrementally to make power accountable , governance just , and state ethical.

Of necessity, many a colonially induced historic continuity 18 marks the Indian Constitution.

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But the colonial inheritance relates more to the apparatuses and institutions of governance than to conceptions of justice, rights, and development. These in turn affect continuities with the colonial past. The distinctiveness of the Indian ROL lies in providing space for a continuing conversation among four core notions: "rights", "development", "governance" and "justice".

In the scramble for a New Empire, the constituent imagination of the so-called "transitional societies" remains tethered primarily to what these former socialist societies may learn from the American constitutional experience. Thus stand monumentally sequestered some considerable opportunities for comparable learning from the Indian ROL experience and imagination.

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Postsocialist constitution-making has much to learn from the originality of the postcolonial form; however, and despite renewed interest in comparative constitutional studies, it seems that the "New" Europe has very little to learn from the old Global South. For the moment, I briefly consider below the relatedness of these four key notions: governance, rights, justice, and development.

The Holocaust of the Partition of India furnishes the histrionic moment in which the Indian constitution stands composed. The establishment of frameworks for collective human security and order was considered as a crucial ROL resource in the same way that today the making of a new global ROL remains affected by the two "terror" wars. The notion that the radical reach of self-determination ought to be confined merely to the end of the colonial occupation furnishes a new leitmotif for Indian governance; integrity and unity of the new nation redefines Indian ROL to authorize vast and ever proliferating powers of preventive detention and eternal continuation of many colonial security legislations as laws in force.

No ROL value consideration in general, overall, is allowed to intrude upon state combat against armed rebellion aimed at secession from the Indian Union.

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In this the Indian experience is scarcely unique. The politics of autonomy requires Indian understanding of the federal principle and detail. True, this distribution of powers can only be changed by constitutional amendments and these remain difficult of negotiation and achievement in the current era of coalitional politics. However, the Indian Parliament retains a generous residuary authority that empowers it to legislate on matters not specified in the state and concurrent list; further, the laws it may make often have an overriding national authority.