Rule of Law and Democracy: Addressing the Gap Between Policies and Practices | UN Chronicle
Differing assumptions about the proper relationship between civic and private life influence of resources, allocation of benefits and burdens, and management of conflicts The rule of law is an essential component of limited government. These rules are in place to protect consumers and help businesses thrive at the same time. Often cited as an impediment to corporate and small business profits and has generally been an opponent of any government law, regulation, the dual nature of government's relation to business may become. Governance comprises all of the processes of governing - whether undertaken by the In business and outsourcing relationships, governance frameworks are built known as The Difference between an Absolute and a Limited Monarchy). .. government effectiveness, regulatory quality, rule of law, control of corruption.
Content Summary and Rationale State governments are established by state constitutions. Each has its own legislative, executive, and judicial branch. States possess substantial powers that, along with their local and intermediate governments, affect citizens' lives from birth to death. Local governments provide most of the services citizens receive, and local courts handle most civil disputes and violations of the law. State and local governments license businesses, professions, automobiles, and drivers; provide essential services such as police and fire protection, education, and street maintenance; regulate zoning and the construction of buildings; provide public housing, transportation, and public health services; and maintain streets, highways, airports, and harbors.
Because of their geographic location and the fact that their meetings usually are open to the public, state and local governments are often quite accessible to the people.
Members of city councils, boards of education, mayors, governors, and other officials are often available to meet with individuals and groups and to speak to students and civic organizations. Citizens need to know the purposes, organization, and responsibilities of their state and local governments so they can take part in their governance. Content standards The constitutional status of state and local governments. Students should be able to evaluate, take, and defend positions on issues regarding the proper relationship between the national government and the state and local governments.
The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the national sovereignty This fully corresponds, in every rational import of the terms with the idea of a Federal Government. Alexander Hamilton To achieve this standard, students should be able to describe similarities and differences between their state constitution and the federal constitution describe the limits the United States Constitution places on the powers of the states, e.
Students should be able to evaluate, take, and defend positions on issues regarding the relationships between state and local governments and citizen access to those governments. The support of State governments in all their rights, as the most competent administration of our domestic concerns, are the surest bulwarks against anti-republican tendencies. Thomas Jefferson To achieve this standard, students should be able to describe how their state and local governments are organized, e.
Students should be able to identify the major responsibilities of their state and local governments and evaluate how well they are being fulfilled.
To achieve this standard, students should be able to identify the major responsibilities of their state and local governments and explain how those governments affect their lives identify the major sources of revenue for state and local governments, e.
What is the place of law in the American constitutional system? Americans look to the principal varieties of law--constitutional, civil, and criminal-- for the protection of their rights to life, liberty, and property. It establishes limits on both those who govern and the governed, making possible a system of ordered liberty which protects the basic rights of citizens and promotes the common good.
This basic notion of the rule of law has been accompanied by the ideal of equal protection of the law, a central theme in the history of the United States.
Law pervades American society. Americans look to the principal varieties of law--constitutional, civil, and criminal--for the protection of their rights to life, liberty, and property. It is often argued, however, that Americans are overly dependent on the legal system to manage disputes about social, economic, and political problems rather than using other means available to them such as private negotiations and participation in the political process.
An understanding of the place of law in the American constitutional system enhances citizens' capacity to appreciate the importance of law in protecting individual rights and promoting the common good.
This understanding provides a basis for deciding whether to support new laws and changes in existing law. Content standards All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
Civil Rights Act of The place of law in American society. Students should be able to evaluate, take, and defend positions on the role and importance of law in the American political system. To achieve this standard, students should be able to explain why the rule of law has a central place in American society, e.
Supreme Court cases such as Marbury v. Board of Education, U. Earl Warren explain how the individual's rights to life, liberty, and property are protected by the trial and appellate levels of the judicial process and by the principal varieties of law, e. Students should be able to evaluate, take, and defend positions on current issues regarding the judicial protection of individual rights.
To achieve this standard, students should be able to explain the importance of an independent judiciary in a constitutional democracy explain the importance of the right to due process of law for individuals accused of crimes, e.
Jane Addams describe historical and contemporary instances in which judicial protections have not been extended to all persons describe historical and contemporary instances in which judicial protections have been extended to those deprived of them in the past explain why due process rights in administrative and legislative procedures are essential for the protection of individual rights and the maintenance of limited government explain major means of conflict resolution, including negotiation, arbitration, mediation, and litigation and their advantages and disadvantages describe the adversary system and evaluate its advantages and disadvantages explain how the state and federal courts' power of judicial review reflects the American idea of constitutional government, i.
How does the American political system provide for choice and opportunities for participation? Content Summary and Rationale Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless. The formal institutions and processes of government such as political parties, campaigns, and elections are important avenues for choice and citizen participation. Another equally important avenue is the many associations and groups that constitute civil society.
All provide ways for citizens to monitor and influence the political process. American constitutional democracy is dynamic and sometimes disorderly. The political process is complex and does not always operate in a smooth and predictable manner. Individually and in groups, citizens attempt to influence those in power. In turn, those in power attempt to influence citizens.
In this process, the public agenda--the most pressing issues of the day--is set, and public opinion regarding these issues is formed. Public opinion sets bounds to every government and is the real sovereign in every free one. James Madison If citizens do not understand the political process and how to participate in it effectively, they may feel overwhelmed and alienated. An understanding of the political process is a necessary prerequisite for effective and responsible participation in the making of public policy.
Content standards The public agenda. Students should be able to evaluate, take, and defend positions about how the public agenda is set. To achieve this standard, students should be able to explain that the "public agenda" consists of those matters that occupy public attention at any particular time, e. It surrounds, directs, and oppresses him.
The basic constitution of society has more to do with this than any political laws. The more alike men are, the weaker each feels in the face of all. Alexis de Tocqueville describe how the public agenda is shaped by political leaders, political institutions, political parties, interest groups, the media, individual citizens explain how individuals can help to shape the public agenda, e.
No one doubts that legislation can sometimes undermine the Rule of Law, by purporting for example to remove legal accountability from a range of official actions or to preclude the possibility of judicial review of executive action. But this is not a problem with legislation as such; this is a concern about the content of particular enactments. Rule by judges, too, can sometimes be seen as the very sort of rule by men that the Rule of Law is supposed to supersede see Waldron Formal, Procedural and Substantive Requirements Theorists of the Rule of Law are fond of producing laundry lists of the principles it comprises.
These principles are of disparate kinds, which may loosely be divided into principles that address the formal aspects of governance by law; principles that address its procedural aspects ; and principles that embrace certain substantive values. These principles are formal, because they concern the form of the norms that are applied to our conduct. So for example, the requirement that laws be general in character, rather than aimed at particular individuals, is purely a matter of form.
A formal requirement of generality does not guarantee justice; but that partly reflects the fact that justice and the Rule of Law work as separate criteria for evaluating a political system. Generality is an important feature of legality, reflected in the longstanding constitutional antipathy to Bills of Attainder.
Of course law cannot work without particular orders, but as Raz points out : These rules themselves should operate impersonally and impartially. Besides the form of the rules themselves there is also the nature of their presence in society. The Rule of Law envisages law operating as a relatively stable set of norms available as public knowledge.
These are features that flow partly from the fact that laws are supposed to guide conduct, which they cannot do if they are secret or retroactive. But it is not just a matter of the pragmatics of governance. Laws face in two directions: Laws that are secret and retroactive so far as i is concerned may still operate effectively in respect of ii.
Governance - Wikipedia
So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: The requirement of clarity is also important in this regard. Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly.
True, much modern law is necessarily technical Weber : It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires. In the nineteenth century, Jeremy Bentham We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve I have adapted this list from Tashima What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them such as it wasand to be represented so that their own side of the story could be explained.
No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded.
It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing.
- The Rule of Law
Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase. Some procedural requirements are also institutional in character: This side of the Rule of Law is connected with the constitutional principle of the separation of powers.
That principle is sometimes justified simply on the ground that it is unhealthy for power to be institutionally concentrated in society. But it also has a Rule of Law justification inasmuch as it assigns distinct significance to distinct stages in the making and application of laws Waldron They do not think it is possible to sharply separate our political ideals in the way Raz seems to suppose. Generality—proceeding according to a rule—is often said to contain the germ of justice Hart And, stability, publicity, clarity, and prospectivity indicate a pretty fundamental connection between the Rule of Law and the conditions of liberty.
We have to be careful, however, to distinguish between allegedly substantive requirements of the Rule of Law and specification of the deeper values that underlie and motivate the ideal even in its formal and procedural requirements. Some jurists believe that there is a special affinity between the Rule of Law and the vindication and support of private property. The commitment to such processes is the essence of the rule of law.
But they think nevertheless that a contingent connection between the Rule of Law and private property can be established by showing that the forms of regulation defenders of private property are concerned about tend to be forms of regulation that the Rule of Law, even on a more austere conception, prohibits. What was missing was the substantive component of the rule of law.
The process by which the laws were made was not fair only whites, a minority of the population, had the vote. And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights.
World Justice Project Those considerations, he said, are better understood as independent dimensions of assessment. A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.
And many liberals are inclined to follow them in that. But this is not the only possibility.
Many associate the Rule of Law with a presumption of liberty or the principle of human dignity. Others—Arthur Chaskalson hinted at this—associate the Rule of Law with a substantive dimension of democracy.
All this sounds an analytic danger signal. Those who favor property rights and market economy will scramble to privilege their favorite values in this regard. But so will those who favor human rights, or those who favor democratic participation, or those who favor civil liberties or social justice.
The result is likely to be a general decline in political articulacy, as people struggle to use the same term to express disparate ideals. Most fundamentally, people value the Rule of Law because it takes some of the edge off the power that is necessarily exercised over them in a political community.
In various ways, being ruled through law, means that power is less arbitrary, more predictable, more impersonal, less peremptory, less coercive even.
Rule of Law and Democracy: Addressing the Gap Between Policies and Practices
It establishes what Fuller Connected with this, the Rule of Law is valuable and important because it establishes an environment that is conducive to liberty. My action can hardly be regarded as subject to the will of another person if I use his rules for my own purposes as I might use my knowledge of a law of nature, and if that person does not know of my existence or of the particular circumstances in which the rules will apply to me or of the effects they will have on my plans.
Predictability is often cited as a Rule-of-Law virtue. In his well-known recent book on the subject, Tom Bingham indicated that one of the most important things people needed from the law that governed them was predictability in the conduct of their lives and businesses. He quoted Lord Mansfield to the effect that [i]n all mercantile transactions the great object should be certainty: Lord Mansfield in Vallejo v.
Wheeler 1 Cowp. There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act to avoid its application. Knowing in advance how the law will operate enables one to make plans and work around its requirements see Hayek The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance.
So we need a basis for expectation. It is hence that we have the power of forming a general plan of conduct; it is hence that the successive instants which compose the duration of life are not isolated and independent points, but become continuous parts of a whole.
Bentham [, ]: Joseph Raz and Lon Fuller took the point about freedom even further. To embark on the enterprise of subjecting human conduct to rules involves … a commitment to the view that man is … a responsible agent, capable of understanding and following rules….
To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey … your indifference to his powers of self-determination.
Procedural principles capture a deep and important sense that law is a mode of governing people that treats them as though they had a perspective of their own to present on the application of norms to their conduct and situation. Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view. As such it embodies a crucial dignitarian idea—respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.
Opposition to the Rule of Law No account of the Rule of Law is complete if it does not mention the ways in which this ideal is deprecated. The laudatory history of the Rule of Law in the work of thinkers like Aristotle, Locke, Dicey, Hayek and Fuller has been matched by opponents of legality such as Plato in The StatesmanThomas Hobbes at least if the Rule of Law is supposed to take us beyond rule by lawand Carl Schmitt in his attack on parliamentarism and on the liberal assumption that rules can prevail even under conditions of endemic crisis.
The criticism by Plato c. From his perspective, which extolled the application of focused intelligence and insight by those in power, insistence upon the use of law in government was like a stubborn, stupid person who refuses to allow the slightest deviation from or questioning of his own rules, even if the situation has in fact changed and it turns out to be better for someone to contravene these rules.
Statesman b—c Rules themselves were part of the problem: These concerns are echoed in the work of modern legal pragmatists like Posner who place much more faith in insight of judges into new situations than in the application of established rules or strained analogies with ancient precedents. Echoes of the Platonic critique are also heard in those who privilege decisive executive decision-making in times of crisis, especially if the crises seem to be successive and unending Schmitt ; Posner and Vermeule The sense of what good law-making and ordinary legal administration require conveyed by the principles of the Rule of Law is sometimes criticized as archaic.
Partisans of the Rule of Law often think in terms of clearly drafted and prospective measures promulgated as norms that can stand in the name of the whole community and form a publicly acknowledged framework for their actions and transactions. But this is not really how law operates in the modern world. As Rubin points out, a great deal of modern legislation consists simply of a frame-working statute authoring agencies to develop much more detailed rules which are conveyed to the public—to the extent that is necessary—by modes of communication much more complex and nuanced than those envisaged in traditional models of the Rule of Law.
But it has little or nothing to do with the way law actually operates or the way legislatures communicate with agencies and agencies in turn communicate with those whose actions and businesses they supervise Rubin At the same time, there are concerns about the mentality that is fostered by an excessive emphasis on the Rule of Law.
In its most extreme form, the Rule of Law can have the effect of closing down the faculty of independent moral thought in the officials the judges, for example: Sometimes it is important, for the sake 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 over-formalize or over-bureaucratize relationships that are more healthily conceived in terms that are more informal. This is not just a matter of legalizing the personal realm; it is also a matter of understanding, for example, the damage that can be done to relations between officials like social workers and vulnerable clients by replacing bringing in rigid rules to replace relatively informal professional norms Simon Controversies about Application As well as these debates about the value of the Rule of Law there is, within the camp of those who stand for legality, incessant controversy about what the Rule of Law requires.
I have mentioned the general debates between defenders of formal, procedural, and substantive conceptions. There are also a number of particular debates. Some jurists, like Dicey and to a lesser extent Hayek insist that official discretion is inherently antithetical to the Rule of Law. Others, like Daviscondemn this as an extravagant position, arguing that discretion is ineliminable in the modern administrative state. The rule of the Rule of Law is not to eliminate discretion, but to ensure that it is properly framed and authorized, and that the application of rules and judicial procedures is preserved for those cases where liberty and well-being are most seriously at stake.
Legal systems use both types of norm Sunstein ; they use standards for cases where the appropriate decision may vary with ambient circumstances and it seems better to trust the judgment of those who face a particular situation, rather than laying it down in advance.
At the same time standards allow for less certainty in the law, especially when it is difficult for the person attempting to comply with the norm to predict how his judgment will be viewed by an official or by a court. Hayek suggests that [o]ne could write a history of the decline of the Rule of Law … in terms of the progressive introduction of these vague formulas into legislation and jurisdiction.
Opinions differ as to whether this should be regarded as something altogether different from the Rule of Law. On the one hand, it looks like a genuine alternative, and little is gained by assimilating its desirable features, such as they are, to Rule-of-Law requirements. On the other hand, it does have something in common with understandings of customary law and conceptions of the Rule of Law like that of Hayek that try to separate themselves from enactment and legislation.
This makes social participation in the integrity and upholding of law more likely Cooter The closer this mapping, the less of an investment there has to be in formal legal promulgation: However, one has to be very cautious with this. Modern law is inevitably technical in ways that far outstrip the possibilities of intuitive understanding Weber : The best that can be hoped for is some sort of occasional consonance between enacted law and informal understandings, and the sporadic character of that may well heighten rather than reduce unpredictability.
It is often thought that emergencies require forms of state action that are more peremptory and less procedurally laborious than those required in normal times. As a matter of fact, a number of possibilities have been discussed Scheuerman One is to insist, in the name of the Rule of Law, that existing constitutional safeguards should remain in force; that, after all, is what they were designed for and these situations are where they are most urgently needed.
Alternatively, in emergencies, one might rely on a general spirit of flexibility and circumstantial sensitivity in state action that is encouraged even in normal times. On this second option, the Rule of Law does not present itself as a major constraint on the flexibility of state action in face of danger.
As a third option, one might seek to preserve something like the Rule of Law by laying down in advance specific legal rules to govern emergencies—rules that suspend ordinary civil liberties guarantees for example or authorize widespread discretion on the part of officials to undertake action that would normally be governed by general rules of law.
Machiavelli proposed a version of this in his Discoursesextolling the institution of dictator in the Roman republic. This option has the advantage of predictability; but its disadvantage is that it endorses a sort of Rule-of-Law-lite, which may eventually infect or supersede the conception of the Rule of Law that is supposed to be normally applicable.
An Administrative Jurisprudence: The Rule of Law in the Administrative State - Columbia Law Review
Much of the work that has been done on the international Rule of Law simply adopts uncritically the perspective of those who say, at the national level, that the Rule of Law requires determinacy, clarity, and predictability see Chesterman But this may be misconceived when we are talking about states rather than individuals as the subjects of law Waldron b.
States are in a much better position to be informed of what their legal requirements are than individual men and women in society, since they are parties to the treaties and practices that establish international law.
Maybe, though, this point does not hold to the same extent when we consider the murky depths of customary international law. Anyway, the liberty of an individual state is not such an important value as the liberty of an individual person. It is not clear that national states need protection from international law and the power that it represents in the way that ordinary men and women need protection from the exercise of political power in society.
Moreover, in areas like international human rights law, any presumption based on the Rule of Law in favor of the liberty of national states will tend to have detrimental effects on the liberty or well-being of individual men and women. We have to be careful therefore that invocation of the Rule of Law in the international realm does not undermine the values that are supposed to be secured by this ideal within national polities. It remains controversial whether international institutions themselves—like the United Nations and its agencies—should be bound by the Rule of Law.
This odd because these agencies are among the most vociferous advocates of the Rule of Law so far as its application to national states is concerned. The reluctance here stems in large part from an estimation of the importance of diplomatic immunity.
UN officials worry that if they and their agencies are held legally liable for malfeasances of various kinds associated with peace-keeping activities, there is a danger that the whole basis of international action might unravel. The danger is probably exaggerated, however, and those who make this argument would not for a moment countenance a similar argument in the sphere of national states.
Indeed it is often argued e. It is said that a legal system in a developing country dominated by legislative action will neither inspire the confidence nor establish the stability that modern governance and investment require. For discussion of these arguments, see Carothers and—more critically—Carothers This raises once more the question of relation between the Rule of Law and legislation—only now it takes us also in the direction of considering an rather uncomfortably direct trade-off between Rule of Law values and democracy.
What is the relation between the Rule of Law and the concept of law? A case can be made—controversial, no doubt—for bringing the two of them together see Waldron and also Simmonds The concept of law could be understood to embrace the fundamental elements of legality, though this identification looks less plausible the more substantive the conception of the Rule of Law is held to be. Otherwise we lose our sense of the institutional distinctiveness of law as a way of ruling a society.
We saw earlier that Lon Fuller and envisaged a connection along these lines. So, in his later work did Ronald Dworkin. Dworkin asked us to consider a situation in which judges and lawyers were grappling with hard issues of interpretation or with difficult dilemmas posed by multiple sources of law.
He said that in such cases, we might say that what was required as a matter of law might be different from what was required as a matter of justice. That is a familiar separation even if Dworkin thought it was narrower and more blurred than most legal positivists believed. But he said, it would make no sense to say that what was required as a matter of legality or respect for the Rule of Law was different from what the legal solution was to this case.
To figure out the legal solution we have to address the various legal and political materials precisely in light of our commitment to legality. A conception of legality is … a general account of how to decide which particular claims are true….