10 Limitations to the Rule of Law

Although many lawyers follow Raz in 1977 when they think the rule of law is a purely formal/procedural ideal, others believe it adds a more substantial dimension. They do not believe that it is possible to clearly separate our political ideals, as Raz seems to suspect. At the very least, the formal/procedural aspects generate some dynamic in terms of content. It is often said that generality – proceeding according to a rule – contains the seed of justice (Hart 1961: chap. 8). And stability, publicity, clarity and foresight indicate a rather fundamental link between the rule of law and the conditions of freedom. However, we must be careful to distinguish between the supposedly substantial requirements of the rule of law and the specification of the deeper values that underpin and motivate the ideal in its formal and procedural requirements. Some theorists distinguish between the rule of law and what they call the rule of law (see, for example, Tamanaha 2004:3). They celebrate one thing and denigrate the other. The rule of law aims to elevate law above politics.

The idea is that the law should be above any powerful person and agency in the country. The rule of law, on the other hand, refers to the instrumental use of law as an instrument of political power. This means that the state uses the law to control its citizens, but never tries to allow the law to be used to control the state. The rule of law is associated with the devaluation of legality by authoritarian regimes, for example in modern China. These four universal principles form a working definition of the rule of law. They have been developed according to internationally recognized norms and standards and tested and refined in consultation with a wide variety of experts around the world. Munro continues: “Administrative law deals not only with the responsibility of the state and its subordinate department for violations inflicted on individuals or their property, but also with the rules of validity of administrative regulations. It also deals with methods of granting remedies when staff members exceed their legal powers, the award of damages to individuals for damages resulting from acts of omission or commission committed by staff members, the distinction between the staff member and the personal actions of staff members and many related matters. www.un.org/ruleoflaw/what-is-the-rule-of-law/ Dicey saw administrative law as a set of rules to protect public servants who have committed abuses of power against the citizen. Good-now defines administrative law as the part of public law that defines the organization and determines the competence of administrative authorities and shows individuals remedies in case of violation of their rights. Those who founded and founded the U.S. government had a very clear understanding of this principle.

They had endured many painful experiences under excessive public scrutiny of their private affairs. People of that time were very jealous of any authority. It was only Hamilton`s state spirit and ingenuity, supported by the great influence of Washington`s wisdom and character, and the reasonable reasoning of the very narrow circle of his collaborators, that succeeded in proposing and adopting the U.S. Constitution. He established a vital government with extensive powers, but within different and prescribed limits. Under the policy of implicit powers adopted by the federal party, its power tended to expand. But under Jefferson`s government, which by words, but not so much by deeds, questioned and rejected almost all the powers of government, his authority tended to decline, and without John Marshall`s great court decisions, it would have become very uncertain. But if there are reasons to criticize Jefferson`s derogatory attitude toward the established government, there are even more reasons to agree with his policy of preserving the greatest possible jurisdiction and authority for the people. After all, our experience is self-government by the people themselves, and self-government cannot be fully established in a distant capital; it must be exercised in part by people within their four walls. The American democratic system is not always based on simple majority rule. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For example, the Bill of Rights was adopted because concepts such as freedom of religion, freedom of expression, equal treatment and due process were considered so important that without constitutional amendment, even a majority should not be allowed to change it.

worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2021/factors-rule-law In practice, certain limitations make it difficult to apply the rule of law. These restrictions prevent the full application of the rule of law doctrine in most countries. Therefore, many countries that claim to have adopted this doctrine do not really practice it. In fact, many political scientists believe that a full application of the rule of law theory is not possible because of its many limitations. Therefore, by insisting that positive law is subject to this substantive coercion, Locke subjected the legislature to a discipline of uncertainty. Since the right to natural property was controversial, the management of a substantial restriction in this direction had to be controversial. And because the substantive restriction was supposed to affect the validity of positive law (Locke 1689: § 135), the effect would be that some people – say, those who disagreed with Locke on the work`s claims to occupation – would disagree with him on which positive property rules are valid and which are not. This emphasis on the value of complexity—how complex laws, particularly property laws, provide safeguards by which people can find protection from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law (e.g., Thompson 1975:258-69). Debating what the rule of law requires is partly the product of the fact that the law itself encompasses many things and people prefer different aspects of a legal system. For some, the common law is the epitome of legality; for others, the rule of law means the impartial application of a clearly formulated law; For others, the rule of law is the epitome of a stable constitution that has been rooted in a country`s politics for centuries.

When Aristotle (Policy 1287b) opposed the rule of law to the rule of men, he dared to believe that “a man can be a ruler safer than written law, but no safer than customary law.” In our time, F.A. Hayek (1973:72 et seq.) has sought to distinguish the rule of law from the rule of law by identifying the former with something more similar to the evolutionary development of the common law, less constructive and less likely to be deliberately controlled than the adoption of a law. There is also an ongoing debate about the relationship between the law and the mechanisms of government. For some, formal discretion is inconsistent with the rule of law; For others, it depends on how discretion is formulated and allowed. For some, the final decision of a court comes down to the rule of law; For others who are aware of the politics of the judiciary, the decision of the courts (especially a politically divided court) is as much an example of human government as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies). (1) Immunity: Immunity is the special right granted to certain persons in positions of authority that protect them from prosecution during their term of office, regardless of the crime committed. These people are diplomats, presidents and governors. This is a restriction on the rule of law.

At the same time, there is concern about the mentality fostered by the overemphasis on the rule of law. In its most extreme form, the rule of law can lead to the ability to think independently of public servants (e.g., judges: see Cover 1975) or ordinary members of a community, making them anxious about uncertainty and distrust of their own judgments or the individual judgments of others (see Henderson 1990). Sometimes it is important, in the interest of clear and courageous moral judgment, not to exaggerate the importance of something being required by law. Other concerns about the mentality fostered by the rule of law include concerns about legalism and the tendency to formalize or overload relationships that are designed to be healthier in more informal terms.