This view is supported by the World Justice Project`s definition of the rule of law cited above, which states in its second universal principle that „fundamental rights“ protected by the rule of law include the protection of persons and property. [60] The rule of law implies that everyone is subject to the law, including legislators, law enforcement officers and judges. [8] In this sense, it opposes tyranny or oligarchy, where rulers are above the law. The apartheid government, its officers and agents were responsible in accordance with the law; The laws were clear; published and stable and have been confirmed by law enforcement officials and judges. What is missing is the material component of the rule of law. The process by which laws were made was not fair (only whites, a minority of the population, had the right to vote). And the laws themselves were not fair. They have institutionalized discrimination, given the executive broad discretionary powers, and failed to protect fundamental rights. Without substantive content, there would be no response to the criticism sometimes voiced that the rule of law is „an empty container into which any law could be poured.“ (World Justice Project 2011:9) F.A. Hayek was trained as an economist, but he also cultivated an interest in the relationship between legal structures and economic forms.
Hayek`s work on the rule of law took place in two phases: (1) from his war book The Road to Serfdom (1944) to the Constitution of Freedom (Hayek 1960); and (2) the somewhat different narrative of his trilogy Law, Legislation and Liberty (1973), a presentation more in keeping with the spirit of the common law and hostile to the role of legislation. 14Another attempt to bridge the gap has been Hayek`s spontaneous order, a dynamic process in which interacting individuals unconsciously accept desirable solutions through a quasi-Lamarckian selection process (Hayek [1988], chapter 1). In particular, Hayek`s approach would extend the rule of law to what is necessary to enable the unfettered development of spontaneous order. This combines freedom of choice and procedural efficiency. However, in making spontaneous order the ultimate guiding principle of a vibrant society, it must be recognized that morality ultimately boils down to a set of routines that characterize a community as a whole, with little role for deliberate behaviour (Hoppe [1994], Jasay [1996]). In the end, „no universal system of ethics can ever be known to us.“ [17] Obviously, the ethics of property also disappear to be replaced by the legitimacy of authority, which Hayek eventually identified with democracy. It follows that it is for democratic elites to judge whether political action is compatible with the spontaneous order (or their understanding of it) and to act accordingly. In other words, this concept of the rule of law becomes a mere screen behind which discretion can be exercised. James Wilson said at the Philadelphia Convention of 1787: „Laws can be unjust, can be reckless, can be dangerous, can be destructive; and yet not be so unconstitutional that judges refuse to give effect to them.
George Mason agreed that judges „can strike down an unconstitutional law. But with regard to any law, no matter how unjust, oppressive or harmful, that does not clearly fit this description, they would be obliged, as judges, to give it carte blanche. [58] Chief Justice John Marshall (followed by Justice Joseph Story) took a similar position in 1827: „If its existence as a law is denied, that existence cannot be proved by showing what the qualities of a law are.“ [59] 8Until the end of the 18th century, the dominant narrative of the rule of law referred to the general and perennial moral principles enshrined in divine natural rights – beyond which the exercise of power becomes abuse and revolt is legitimate. [8] In particular, natural law implies that power is legitimate when it is designed to protect individual liberty and enforce property rights. In the Federalist Papers, John Jay, James Madison and Alexander Hamilton wrote about the need for an established justice system independent of other government actors. In Federalist 78 – the independent judiciary interprets only the laws. The federal judicial system, including the Supreme Court, does not make or enforce the law. The result is that the judiciary cannot become too powerful or overstep its authority. The rule of law in the American model is a safeguard against authoritarianism. Traditionally, an authoritarian government denies the freedom of citizens and rests power on a single ruler or a small group of members of the ruling elite.
Leaders sometimes resort to authoritarian rule when they fear losing power or governmental authority. It can also be used in corrupt government affairs or to reward supporters. In the words of Justice Anthony Kennedy, „the term rule of law is often invoked, but rarely defined.“ Since Aristotle`s time, scholars, judges, and jurists have struggled to articulate the meaning of the sentence clearly. This article contributes to the ongoing debate by establishing eight principles that constitute the fundamental principles of the rule of law. This article also identifies five additional principles that could be added to the list of rule of law principles. This ongoing search for definitions is important because, to the extent that we can more clearly identify the principles of the rule of law, we can more effectively support legal and policy reforms that will advance them. First, the rule of law must protect against anarchy and the Hobbesian war of all against all. Second, the rule of law should enable people to plan their affairs with sufficient certainty to be able to know in advance the legal consequences of various actions. Third, the rule of law should prevent at least some forms of official arbitrariness. An idea of legality is . A general account of how to decide which particular statements are true.
We could understand neither legality nor law if we were denied this intimate connection. (Dworkin 2004:24–5) 2To be sure, many players in other parts of the world could have benefited from low transport costs, population growth and technological breakthroughs. However, the West had two key characteristics that other societies lacked: the ethic of productive entrepreneurship and the somewhat unique rules of the game that gradually emerged towards the end of the 11th century. The influence of Britain, France and the United States has helped spread the principle of the rule of law in other countries of the world. [33] [34] The rule of law can be observed at all levels of the U.S. government and in the daily life of civil society. To implement this model, a government must create fair laws that are universally enforced and followed by all citizens. including leadership.