All representatives of the U.S. government, including the president, Supreme Court justices, state justices 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. John Locke, in the second of his Two Treatises on Government (1689), emphasized the importance of governance through „permanent laws established, promulgated, and known to the people.“ He opposed this to domination by „temporary arbitrary decrees“ (Locke 1689: §§ 135-7). Now, the term „arbitrary“ can mean many different things. Sometimes it means „oppressive.“ But when Locke distinguished the rule of established laws from arbitrary decrees, it was not the oppressive feeling of „arbitrariness“ that he had in mind. In this context, something is arbitrary because it is temporary: there is no notice of that; The sovereign simply discovers it while he is participating. It is the arbitrariness of the unpredictability of not knowing what one can count on, of being submissive, as Locke said (1689: § 137), of being subject to someone. The principle was also discussed by Montesquieu in L`Esprit des lois (1748). [29] The term „rule of law“ appears in Samuel Johnson`s Dictionary (1755).
[30] The rule of law is an important element of peacekeeping, as noted by the General Assembly and the Security Council in the two resolutions examining the peacebuilding architecture. Peacekeeping requires an integrated and comprehensive approach throughout the United Nations system, based on coherence between political, security, development, human rights, gender and rule of law policies in support of the efforts of Member States. In Canada, administrative law makes the rule of law an underlying constitutional principle that requires that government be governed by law and that all public servants be held accountable for their actions before the ordinary courts. In France and Germany, the concepts of the rule of law correspond to the principles of constitutional primacy and protection of fundamental rights over the public sector (cf. public law), in particular the legislator. [44] [45] The France was one of the early pioneers of rule of law ideas. [46] The German interpretation is „more rigid“ but similar to that of the France and the United Kingdom. [47] [48] Generality is an important feature of legality, which 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. Even if the principles of the rule of law are purely formally applicable, we do not appreciate them only for formalistic reasons. More fundamentally, people value the rule of law because it takes away some of the advantage of the power necessarily exercised over them in a political community. In many ways, the rule of law means that power is less arbitrary, more predictable, more impersonal, less coercive, even less coercive. He notes what Fuller (1964: 39-40) called a bond of reciprocity—a reciprocity of coercion—between leader and ruled, and in this sense he mitigates the asymmetry that political power otherwise brings. In countries such as China and Viet Nam, the transition to a market economy has been an important factor in the move towards the rule of law, as the rule of law is important for foreign investors and economic development. It is not clear whether the rule of law in countries such as China and Vietnam will be limited to trade issues or extend to other areas and, if so, whether these effects will improve the prospects for related values such as democracy and human rights. [63] The rule of law in China has been the subject of much discussion and debate by both jurists and politicians in China. In addition to the form of the rules themselves, there is also the nature of their presence in society. The rule of law provides that the law functions as a relatively stable set of publicly available rules. It requires that laws be public and enacted long before individuals are required to comply with them. These are characteristics that stem in part from the fact that laws are designed to guide behaviour, which they cannot do if they are secret or retroactive.
But it is not only a question of pragmatism of governance. Laws go in two directions: (i) they impose requirements with which ordinary citizens must comply; and (ii) instruct officials on what to do in the event of non-compliance by citizens. Laws that are secret and retroactive to the extent (i) concerned may continue to have effect with respect to (ii). The rule of law`s requirements for publicity and foresight therefore have an additional significance: they require citizens to be informed of what is required of them and that any basis on which they are held accountable be held accountable. The norms of constitutional economy can be used during the annual budget process, and if this budgeting is transparent, the rule of law can benefit. The availability of an effective judicial system that can be used by civil society in situations of inequitable public spending and seizure of funds previously approved by the executive branch is a key element in the success of rule of law efforts. [88] The rule of law also requires that people can expect predictable outcomes from the legal system; this is what Justice Wood implies when she says that „laws must not be arbitrary.“ Predictable outcomes mean that people who act in the same way can expect the law to treat them the same. If similar actions do not lead to similar legal outcomes, people cannot use the law as a guideline for their actions, and a „rule of law“ does not exist.
Aristotle`s work on the rule of law is still influential. Although he framed the question of whether it was better to be governed by the best man or by the best laws, he approached this question realistically, noting that it depended not only on the type of law considered, but also on the type of regime that enacted and administered the law in question (Politics 1282b). , discretionary application of regulation) discourages investment. Economists have found, for example, that an increase in discretionary enforcement of regulations has led U.S. companies to abandon international investment. [92] There is no doubt that legislation can sometimes undermine the rule of law, for example by purporting to remove legal responsibility for a number of official acts or to exclude the possibility of judicial review of enforcement measures.
