Rule of law

The definition of the Rule of law varies according to the authors and the times. At least, it is about an institutional system in which the public power is subjected to the right.

The Rule of law is thus very related to the respect of the Hiérarchie of the standards, of the Séparation of the capacities and the Basic rights.

In other words, the Rule of law is that in which political agents (in democracy: the elected officials), are held by the right which was enacted. The theory of the separation of the capacities of Montesquieu guarantees that each of the three capacities: executive, legislature and legal are distinct and thus are limited. The Rule of law thus opposes the absolute monarchies of divine right (the king in the Old mode thought of having received his capacity of God and thus did not admit limit with its capacity) and the dictatorships in which the authority mistakes the basic rights. The Rule of law does not require that all the right be written. Indeed, in certain nonsuspect democratic States of gravely hurts to the right, the basic rights are not written. The political agents must then respect the common law if it is clearly established, as well as the basic rights.

Theory of Kelsen: Rule of law and hierarchy of the standards

According to an older definition, the Rule of law is a system Institutionnel in which the public power is subjected to the Droit. The Austrian lawyer Hans Kelsen redefined this concept of German origin (Rechtsstaat) at the beginning of the 20th century, as a State in which the legal standards are treated on a hierarchical basis so that its power is some limited .

In this model, each rule draws its validity from its compliance with the higher rules.

The respect of the Hierarchy of the standards

See also: Hierarchy of the standards

The existence of a hierarchy of the standards constitutes one of the most important guarantees of the Rule of law.

Within this framework, the Compétence S of the various bodies of the State must be precisely defined and the Norme S which they enact are valid only on the condition of respecting the whole of the Norme S of right higher. In the top of this pyramidal unit the Constitution appears, followed international engagements, Loi, then payments. In the base of the pyramid the administrative decisions or conventions between people of Private law appear.

This legal scheduling is essential on the whole of the legal people. The State, not more than one private individual, cannot thus ignore the principle of legality: all Norme, any decision which would not respect a higher principle would be indeed likely to incur a legal sanction. The State, which is competent to enact the right, is thus itself been subject to the legal rules, whose function of regulation is thus affirmed and legitimated.

Such a model thus supposes the recognition of an equality of different the Sujet S from right subjected to the standards in force.

Equality of the subjects of right

The equality of the subjects of right constitutes the second condition of the existence of a Rule of law. This one implies indeed that any individual, any organization, can dispute the application of a legal standard, since this one is not in conformity with a higher standard. The individuals and the organizations consequently receive the quality of anybody legal: one speaks about Natural person in the first case, of Moral person, in the second.

The State itself is regarded as a moral person: its decisions are thus subjected to the respect of the principle of legality, following the example other legal people. This principle makes it possible to frame the action of the public power by subjecting it to the principle legality, which supposes in the highest degree, the respect of the constitutional principles. Within this framework, the constraints which weigh on the State are strong: the payments which it enacts and decisions that it takes must respect the whole of the higher legal standards into force (laws, international conventions and constitutional requirements), without being able to profit from any privilege of jurisdiction, nor of a derogatory mode to the common right. The natural persons and morals of private law can thus dispute the decisions of the public power by opposing the standards to him which it itself enacted. Within this framework, the role of the jurisdictions is paramount and their independence is a need incontournable' .

The independence of Justice

To have a practical range, the principle of the Rule of law supposes the existence of independent, qualified jurisdictions to slice the conflicts between the various legal people by applying at the same time the principle of legality, which rises from the existence of the hierarchy of the standards, and the principle of equality, which is opposed to any treatment differentiated from the legal people.

Such a model implies the existence of a Séparation of the capacities and of an independent justice. Indeed, Justice belonging to the State, alone its independence with regard to the executive legislative powers and is able to guarantee its impartiality in the application of the standards of right.

Problem arising from the comparison of the standards

In addition, the jurisdictions must be able to confront the various standards, in order to judge of their legality, including if they are rules having a row raised in the hierarchy.

A contrary international convention with the Constitution can thus be isolated by the judge and regarded as not validates: it is the control of conventionality. The validity of the law to the constitution is checked by the Constitutional council, when it is seized: it is the control of constitutionality. The Rule of law thus supposes the existence of a control of constitutionality and conventionality.

Comment

The Rule of law is before a whole ideal model. But it also became a political topic since it is regarded today as the main feature of the modes Démocratique S. By making right a privileged instrument of regulation of the political organization and social, it subordinates the principle of legitimacy to the respect of legality. It thus justifies the role growing of the jurisdictions in the countries which are claimed of this model.

Current definition: Rule of law and Justice

The current definition of the Rule of law rather seems to be more pragmatic and thus in opposition with new concepts.

Rule of law and Anarchy/Civil war

Now this concept became more practical. Thus, if the hierarchy of the standards must be respected, it must also have a true impact.

The Rule of law must henceforth apply and make make apply this hierarchy. The definition of Rule of law is not reduced any more at the State itself but at all the legal and political institutions of a country.

The State must thus have the means of maintaining the right on its territory. In this direction, one approaches more of the concept of Justice. A Rule of law it is thus a legal structure which regulates the company on the model of the right.

Rule of law and Dictatorship?

A a priori consists in differentiating from the start rule of law and dictatorship.

The things do not seem also simple. If one considers the right without no moral or political value, they are not any more but simple rules. One could thus regard a state as a dictatorship and a rule of law at the same time. It would be enough to apply the right to the letter.

However, the dictatorships are seldom equipped with a right controlled by a Constitutional court, and with an independent justice.

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