Rule of law

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Rule of law describes a concept that emphasizes governance based on laws as essential and gives the law absolute priority over other standards or justifications for sovereign action. It developed primarily against the background of the history of the Anglo-Saxon legal system, which is based on common law . Today, the concept of the rule of law a cornerstone of Western , democratic systems represent, and the term is found in western constitutions again. Representatives of the idea of ​​the Rule of Law include: a. Aristotle , Albert Venn Dicey and Joseph Raz .

history

The demand for the rule of law was first described by James Harrington in 1656 in his work The Commonwealth of Oceana as the "Rule of Law". However, the roots of the concept can be traced back much further. Aristotle wrote: "The rule of law is better than that of any individual" and referred explicitly to the protection of law from the arbitrary rule of individual tyrants. The idea can also be found among Roman legal scholars , the thinkers of natural law in the Middle Ages and many legal scholars of the last 500 years.

Fundamental for the development of the Rule of Law in today's sense was, above all, the Magna Charta of 1215, which restricted the monarch's arbitrariness for the first time in a documented form. It says in Article 39: “No free man should be arrested, taken prisoner, expropriated or disenfranchised, or in any other way violated in his rights; nor will we convict him or punish him in prison, except by a lawful judgment passed by his peer in compliance with the rights of the land. "

Other important steps in the development of the rule of law were the Petition of Right (1628) and the Habeas Corpus Act (1679). The former established private property and personal freedom as natural and law-governing principles. Everyone, including the king and the judiciary, had to act accordingly. The habeas corpus file added the procedural guarantee, i.e. the right to defend one's freedom before a judge in the event of arrest. Ultimately, the increasing efforts of the English parliament led to a civil war (1642–1649), which it won in 1689 after the Glorious Revolution with the Bill of Rights . England had come a lot closer to a rule of law with the introduction of a constitutional monarchy, which was made clear not least by the Act of Settlement of 1701, which laid down the independence of the courts. In the 18th century, the mutual control of powers established itself as a further milestone.

The work Introduction to the study of the law of the constitution by Albert Venn Dicey , published in 1885, has an influence on the concept of the rule of law that should not be underestimated . Dicey's considerations of a Rule of Law are still valid today.

To this day, the Rule of Law has evolved in various legal systems and thus there are also nuances in what is meant by the term in detail. Not least because of this, you always have to ask yourself what exactly is meant by the rule of law. It can be:

• State organs submit to different legal ideas or ideologies. These are understood as pre-positive law, i.e. law that exists independently of specific legislation. This is an understanding in the sense of the état de droit .
• The state organs are subject to the positive laws of the legislature (understood as a constitutional state).
• A universal, global, pre-positive right derived from reason, which everyone - including the legislature - must comply with.

Rule of Law in the sense dealt with here means the last mentioned.

criteria

A general and precise definition for the concept of the rule of law does not exist. However, it is possible to record some criteria that are considered universal in the literature. But first it is worth looking at some popular elaborations of the term. The three selected theorists should give an idea of ​​the range that the term “Rule of Law” can assume.

Dicey

Albert Venn Dicey was the first to deal fundamentally with the rule of law on the theoretical level. In “Introduction to the study of the law of the constitution” he distinguishes between three different but related areas of the Rule of Law.

1. Nobody can be punished without a violation of the law having been established by a court of law. This implies that all state action is subject to the law and the exclusion of arbitrary violence.
2. Everyone - regardless of social status - is subject to the same jurisdiction and the same law.
3. It does not need a statutory law, because it arises from the case law on the personal rights of the individual.

Raz

Joseph Raz starts from the premise that laws exist so that decisions do not have to be made on an ad hoc basis each time and that there is clarity (“law as authority”). Raz largely agrees with Dicey, but adds some aspects to him. He sees the following points as a prerequisite for a Rule of Law:

• Laws must be universal and apply to everyone.
• Laws must be prospective (i.e. directed towards the future, prohibition of retroactive effects)
• Laws must be made public, clear (to avoid over-interpretation) and relatively stable (so they shouldn't be changed too often).
• Laws must be consistent and executable.
• Official action must be consistent with this.
• Announcement, execution and possibility to contest the laws must follow clear and relatively stable rules.
• Access to the legal system must be as simple as possible.
• The independence of the judiciary must be guaranteed.
• The principles of “natural justice” must apply (ie: fair trial, impartiality of judges, adversarial procedure).

Ink pen

Lon Fuller describes eight principles of a rule of law in his work "The Morality of Law". These are similar to those of Raz, but set a different accent:

1. Laws must exist and be obeyed by everyone, including government officials.
2. Laws have to be published.
3. Laws need to be prospective.
4. Laws should be worded as clearly as possible to avoid unfair enforcement.
5. Laws must avoid contradictions.
6. Laws must not demand the impossible.
7. Laws have to remain constant over a longer period of time in order to allow formalization.
8. Official actions should be consistent with the rules stated.

Fuller's approach is shaped by an attempt to find a way between lawless anarchy, legalistic despotism and personal tyranny. As a distinguishing feature, he strongly emphasizes the aspect of the formalization of laws.

Universal criteria

Although the individual forms of the Rule of Law criteria vary to a greater or lesser extent from theorist to theorist, similarities are undoubtedly perceptible. These recurring moments of a rule of law are:

• Absolute primacy of the law. Law is understood here as a pre-positive law with the equivalent of justice. It goes beyond our everyday understanding of the law and exists independently of the legislation. This right applies universally and takes precedence over individual arbitrariness.
• The state prohibition of arbitrariness complements the first point. Nobody can be punished without a violation of the law having been established by a court of law. This implies that all state action is subject to the law and the exclusion of arbitrary violence.
• The third criterion are the characteristics of clarity, stability, consistency and public disclosure of the law.
• Independence of the courts.
• Guarantee of fundamental rights .
• Guarantee of certain proceedings, i.e. the possibility of enforcing one's own rights in proceedings.
• Prospective character of laws.

Differentiation from the German constitutional state

The rule of law and the rule of law seem to mean the same thing at first glance (and also in the broader everyday understanding). Indeed, both concepts are based on the concern that people are ruled by law and not by people (and thus arbitrarily). On closer inspection, however, the two concepts differ to a greater or lesser extent in many respects. The main reason for the differences is the historical development (in Germany and Great Britain) that formed both terms.

Criteria rule of law

The following points are usually considered to be essential for a constitutional state:

• Guarantee of fundamental rights (guarantees for personal freedom, principle of equal treatment and definition of limits to state action)
• Separation of powers
• Government agencies must conform to the laws and the Legislature on the Constitution hold
• Clarity and consistency of laws
• Legal certainty and non-retroactivity
• Proportionality (in relation to the restriction of rights for the common good)
• Legal protection (constitutional jurisdiction and security through legal channels).

Differences to the Rule of Law

The differences to the Rule of Law can mainly be seen in the following points:

Legal sources

The rule of law is closely linked to common law , which orientates judges' case law, in addition to positive law, to previous precedents. Because law is developed by judges, common law is a highly flexible system. The rule of law, on the other hand, is based on the belief that judges apply laws. So the main point of reference is the positive law.

history

In Great Britain, a constitutional monarchy had formed early on . That is why democracy was much more at the center of considerations than was the case in Germany, where questions of the application of monarchical law were in the foreground.

target group

The rule of law addresses all three branches (executive, legislative, judicial). In Great Britain, too, all powers are based on the rule of law, but at least the legislature is theoretically not bound by it.

Fundamental rights

In Germany, fundamental rights are explicitly protected by the Basic Law . In Great Britain, protection, like other rights, is based on common law.

Constitutional jurisdiction

In Germany, the Federal Constitutional Court exists with the aim of controlling the legislature, i.e. determining whether laws are constitutional. In Great Britain, on the other hand, the legislature is completely sovereign, but in practice it is based on the Rule of Law, as otherwise there would be a risk of the voters being abstracted at the ballot box.

Separation of powers

In contrast to the Rule of Law, the rule of law is inherent in the separation of powers.

Rule of Law and Republicanism

Republicans see law-based rule as the counterpart to domination (in the sense of the English term "domination") through arbitrary rule. Since even a good monarch would rule (again in the sense of "to dominate"), people have to act as citizens and govern themselves. Securing freedom from arbitrariness is only possible through self-government and thus by making laws. For Republicans, a rule of law is accordingly dependent on democratic self-government on the part of the citizens. This means that all citizens participate equally in the creation of new collective rules and everyone is subject to the new laws. The process is characterized by listening to the "other side" and making decisions on the basis of arguments under the point of reference of the common good.

In order to guarantee a rule of law in the republican sense, a mixed form of government is necessary, i.e. the existence of a separation of powers and a balance of power (especially to balance interests). Further features are a representative legislature, an independent judiciary, and easily accessible courts.

Republicans want to avoid a formalist approach (as seen in Hayek's work). The formalistic approach states that laws ensure equality and freedom by being generally valid and abstract. In contrast to this, the Republican approach allows specialized, different types of rules, if no one is discriminated against or taken advantage of, if they apply equally to all concerned and are justifiable. The Republicans see this as an advantage in that it is better suited to today's pluralistic societies. From a republican point of view, formalistic approaches do not do justice to this, as interests and circumstances are too diverse to assume universal rules.

The possibility of broad participation and contestation (contestation) of all laws and also of the constitution on the part of the citizens is extremely important for Republicans, since only with these possibilities can one speak of real democratic self-government.

However, a rule of law can only exist if the political system responds to citizens' experiences with the law and is guided by them. That is why, according to Bellamy, a rule of law is always an "equal rule of all persons".

literature

• Richard Bellamy: The Rule of Law and the Rule of Persons. In: Critical Review of International Social and Political Philosophy, 4, no. 4 (2001): 221-251.
• Tom Bingham, The Rule of Law (2010). Penguin Books, London 2011.
• Thomas Fleiner, Lidija R Basta Fleiner, Peter Hänni: Allgemeine Staatslehre: About constitutional democracy in a multicultural globalized world. Springer publishing house. 3rd edition Berlin a. a. 2004. ISBN 978-3-540-00689-3
• RK Mosley: Westminster Workshop . A Student Guide to British Government. 5th edition. Pergamon Press, Oxford 1985, ISBN 0-08-031834-7 (English).
• Franz Neumann: The Governance of the Rule of Law. An Investigation into the Relationship betweeen the Political Theories, the Legal System and the Social Background in the Competitive Society (1936); German: The rule of law. An investigation into the relationship between political theory and the legal system in a competitive society. Suhrkamp, ​​Frankfurt am Main 1980.

Web links

• Understandings of the Rule of Law in Various Legal Orders of the World (English), Wikis of the Free University Berlin, edited by Matthias Koetter and Folke Schuppert
• Frithjof Ehm "The Rule of Law: Concept, Guiding Principle and Framework" ( Memento from April 4, 2012 in the Internet Archive )

Individual proof

1. ^ RK Mosley: Westminster Workshop . 1985, p. 12-13 .