The final section showed that the rule of law remains a concept within the EU whose substantive and normative functions are still widely discussed. However, the ongoing debate on the rule of law does not prevent this principle from gaining prominence on the agenda of the domestic and foreign policy of States,88 but also of regional and international organizations of all legal traditions.89 In this context, the International Bar Association has gone so far as to present the rule of law as the “foundation of a civilized society”.90 Generality is an important characteristic of legality. is reflected in the long-standing constitutional antipathy to Attainder`s bills. Of course, the law cannot function without special ordinances, but as Raz (1979 [1977]:213) points out, the general public requirement is generally understood to mean that “the creation of certain laws should be guided by open and relatively stable general rules.” These rules themselves should be impersonal and impartial. In Thailand, a kingdom that has had a constitution since the first attempt to overthrow the system of absolute monarchy in 1932, the rule of law has been a principle rather than a real practice. [ref. needed] Old prejudices and political prejudices were present in all three branches of government with each of their foundations, and the judiciary was formally treated according to the law, but in fact more closely associated with the royalist principles that are still advocated in the 21st century. [ref. In November 2013, Thailand faced new threats to the rule of law when the executive overturned a Supreme Court ruling on the selection of senators. [ref. needed] Especially since the end of the cold war, we have witnessed a genuine renewal of the rule of law.
From this perspective, the rule of law was at the heart of the Copenhagen Declaration, issued following the Conference on Security and Cooperation in Europe (CSCE) held in June 1990, a few months after the fall of the Iron Curtain. In line with Fukuyama`s “end of history” argument,94 this declaration represented “the political blueprint for a Europe committed to democratic pluralism, free elections, the rule of law and the protection of human rights”.95 This revival has arguably led to a “venerable part of Western political philosophy enjoying a new evolution as a growing imperative of the age of globalization”.[96] The rule of law has now transformed into a kind of global policy that encompasses “the state, the market and the bureaucracy with which it is closely linked. is an institution based on rational Western values, supported by the authority of international organizations and disseminated throughout the world. 97 The old concept of the rule of law differs from the rule of law, according to political scientist Li Shuguang: “Difference. is that the law takes precedence over the rule of law and can serve as a check against abuses of power. In the context of the rule of law, the law is merely a tool for a government that legally suppresses. [41] The “rule of law” means, first and foremost, “protection of property rights.” [90] The economist F. A. Hayek analyzed how the rule of law could benefit the free market. Hayek suggested that under the rule of law, individuals would be able to make wise investments and future plans with some confidence in a successful return on investment, when he said: “Under the rule of law, government is prevented from crippling individual efforts by ad hoc action.
Within the known rules of the game, the individual is free to pursue his personal goals and desires, with the certainty that the power of government is not deliberately used to thwart his efforts. [91] The defeat of the Nazi regime and the acknowledged failure of legal positivism led to a revival of the more liberal perspective on the rule of law. In this sense, after the Second World War, Germany incorporated the supraconstitutional value of human dignity (Article 1, paragraph 1) into the Basic Law, which cannot be modified under any circumstances (Article 79).32 Human dignity and individual freedoms are therefore recognised as pre-existing human rights which the State should protect not as certain/objective values, but as sui generis freedoms.33 It is not surprising, therefore, that Germany, after the Second World War, gained a very strong confidence in constitutionalism and judicial review of constitutionality. In this respect, the growing role of the Federal Constitutional Court has contributed to the “Judinalisation”34 of German politics, so that the Court has become the “supreme guardian of democracy and the rule of law” in Germany.35 This activism of the German Constitutional Court still takes place today, as does the Court`s role in the process of European integration through the constitutional review of European legal acts.36 Is it reasonable to use The rule of law to assess how a society responds to emergencies? It is often assumed that emergencies require more persuasive and less procedurally burdensome forms of government action than are normally required. In fact, a number of possibilities have been discussed (Scheuerman 2006). One is to insist, in the name of the rule of law, that existing constitutional guarantees remain in force; After all, that`s what they`re designed for, and these situations are where they`re needed most. On the other hand, in emergencies, there could be a general spirit of flexibility and circumstantial sensitivity in government action, which is also encouraged in normal times. In this second option, the rule of law does not present itself as a major obstacle to the flexibility of the State`s action in the face of dangers.
As a third option, one could try to preserve something like the rule of law by establishing in advance specific legal rules for emergency situations — rules that, for example, suspend general guarantees of liberty or give staff members a wide margin of appreciation to take actions that would normally be governed by general legal norms. (Machiavelli proposed a version in his Discourses (1517) and praised the institution of the dictator in the Roman Republic.) This option has the advantage of predictability; But its disadvantage is that it advocates a kind of light of the rule of law that can eventually infect or replace the concept of rule of law that is normally supposed to be applicable. The first known use of this English term dates back to around 1500 AD. [24] Another early example of the term “rule of law” can be found in a petition from the House of Commons to James I of England in 1610: some jurists believe that there is a special affinity between the rule of law and the justification and support of private property. Ronald Cass (2004:131) states that “an essential aspect of the commitment to the rule of law is the definition and protection of property rights.” The independence of the federal judiciary in the United States was established by the Senate`s “advisory and consent powers” in approving presidential nominees for federal judges, and by the power of the House and Senate to impeach and remove judges for life for incompetence or misconduct. The independence of the judiciary was decided in Marbury v. Madison (1803), under Chief Justice John Marshall, who affirmed the power of judicial review of the Supreme Court, meaning that the court became the final arbiter of whether or not laws and government actions were constitutional. It was already clear from this CJEU ruling that, as a “community based on the rule of law”, EU Member States and EU institutions should be subject to the rule of law. Since then, the European institutions and Member States have regularly referred to the rule of law. The rule of law became part of the EU treaties with the Maastricht Treaty in 1992, which contained several references to the rule of law.71 It was then gradually recognised as one of the EU`s constitutional principles, enshrined in what became Article 2 of the Treaty on European Union (TEU). In this respect, the adoption of the Treaty of Lisbon has made an important contribution to “the Union`s respect for the principle of the rule of law in relation to the Union`s constitutional framework”.72 Indeed, according to Dimitry Kochenov, “crucial elements of what essentially the rule of law is are simply not part of the system”.73 All U.S. government officials, including the President, Supreme Court justices, state judges and legislators, and all members of Congress are primarily committed to upholding the Constitution.
These oaths affirm that the rule of law is superior to the rule of any human ruler. [52] At the same time, the federal government has considerable discretion: Parliament is free to decide which laws it drafts, provided that they remain within its enumerated powers and respect the constitutionally protected rights of the individual. Similarly, the judiciary has some discretion,[53] and the executive also has various discretionary powers, including prosecutorial discretion. The People`s Republic of China governs the country in accordance with the law and makes it a socialist rule of law state.111 Dialogue and cooperation between these rule of law traditions could also lead to a refinement of the understanding of the rule of law by following Ronald Dworkin`s idea of moving the rule of law perspective from a “settlement” to a concept of “rights” of the rule of law.
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