Rule of Law

Introduction

The theory of Rule of Law can best be described as the foundation on which the contemporary democratic society is grounded. The Rule of Law guard’s individuals from the excessive power execution from the government while facilitating easier governance. For the effective functioning of the government as a political institution, the enforcement of the law is inevitable[1]. In that laws are mainly created and applied for the wellness of the public while maintaining harmony amid different conflicting factors in the society in general[2]. One of the main objective of the creation of laws to the sustainability of law as well as order and creating a harmonious surrounding that encourages development amongst individuals. In this context, the Rule of Law serves as an essential part of the whole process[3]. The Rule of Law is a concept that is derived from the legality principle mainly referring to an administration that is founded on the values of law rather than personal motives. In other words, it might be interpreted to imply that law holds superiority over every individual[4]. While the Rule of Law guards individuals against exploitation from the government it becomes evident that the same concept requires them to be obedient to it. The rule of Law means that the power held by the government might only be exercised in reference to the legal principles embraced through a classified process with the intention of safeguarding individuals from arbitrary actions of executive authorities.

The Rule of Law is widely recognized as a rate and variable value of political civilizations. The concept mainly encompasses the values that are related to regularity and confine. Despite the fact that the concept is categorized as a set of shield amid persons and government’s extreme power the actual content and its use is not clear[5]. This is because the phrase does not offer any description in reference to the manner in which its legal principles are made and how the fundamental liberties that it focuses on should be applied in general. However, the Rule of Law offers provisions for two founding principles holding that the law based on its legality should be obeyed by individuals both the ones ruling and those under governorship and that laws should be developed in a manner that they are capable of offering behavioral guidance to all its subjects. Different law theorists hold differentiated strategies with respect to the Rule of Law concept as a number of them hold they believe that the concept is characterized by formalized features[6]. This is to imply that laws should be proclaimed publicly with the prospective use as they demonstrate the features of equality, inevitability, and generalization but there are no necessitates regarding the law’s content. On the other hand, some theorists in the legal field hold the consideration that the Rule of Law mainly involves the protection of individual’s privileges[7]. With respect to the legal conceptualization, the two approaches are perceived as the founding options which are classified as substantive and formalized theories.

The idea that the Rule of Law and societal wellness are unsuited is present in two different but legal thoughts schools that have little to share in regard to their assertions. One of the school is comprised of a group of legal critical studies professions while the other is headed by Fredrich Hayek. According to Dicey’s Rule of Law theory without the superiority of the law no individuals can be penalized or exposed to suffering in exception of situations that they have been engaged in the infringement of law as established by the legal bodies in the specific setting. Dicey held the view that all people regardless of whether they are ordinary persons or the government authorities are obliged to obeying the law[8]. This is grounded on the notion that the law is the only superior ruler and there is none that is above it. In this context, Dicey asserts that no individual should be subjected to punishment for any other violation except that which involves law breaching based on its establishments[9]. In other words, Dicey mainly argues that the Rule of Law is bound on guarding individual’s rights against the wrongful power execution by the government. In this context, as individuals are expected to act based on the provisions given by the law it is also evident that the government is to act based on the principles of the same law in governorship and management of the people and the society. Dicey also provides in his assertion that the Rule of Law is mainly to be applied with equality in mind. In that individuals should not be punished based on their socio-economic, ethnic, religious or any other form of classification[10]. This implies that equality, as provided by the law, should prevail while managing ordinary persons. In this context, the principality of the Rule of Law asserts that there is no individual that is superior to any established law. In that, even the government executives are obligated to adhere to the same law’s provisions and thus their issues cannot be dealt in a customized court of Law because they are under the same jurisdiction. The other principle of Dicey’s assertion is that the constitution as part of law is derived from the ordinary legality of a given jurisdiction. Dicey asserts that in most states a number of privileges like freedom are detention are mainly highlighted within the drafted country’s constitution as law on its own and cannot there be violated for any reason[11]. In different countries, the privileges are grounded on the judicial provision in general based on the present conflict amid different subjects. In this context, it is not that always the source of guidance is the constitution but the resulting outcome and the need to guard individual’s rights[12].

Hayek’s argument is mainly centered on Dicey’s claims with respect to the Rule of Law as Dicey held that the concept is not a formalized concept of government while Hayek based his oppositions based on the standard of planning[13]. While Dicey asserted that the set law is usual in creating harmony and encouraging growth, Hayek noted that the law is developed through collective planning that is mainly facilitated by the state and does not incorporate any voluntary activity thus making several aims such as social justice challenging given that there lacks a more appropriate strategy of achieving each[14]. In this context in the Rule of Law, there are no such measures are collective sets of laws given that the principles such as equality and freedom are set by a group of experts through the generalizations of individual’s needs[15]. In this ground there lacks any form of consensus and by taking the choices and principles on behalf of the public mainly means that intimidation has been applied[16]. Hayek, therefore, asserts that the government based on its power to rule and to punish individuals is supreme to the law and the people which tends to be an application of arbitrary actions against individuals rights.

To Hayek, market competition is the most effective strategy for ensuring that decisions are made collectively without the use of more power by a set of persons[17]. In that, in the markets, there is no coercion given that decisions are made voluntarily which in turn promotes the right of freedom and choice rather than the imposition of certain principles which are not operative. In this context, the distribution of resources is fairer contrary to when compared to the government which tends to rely on convenience while corruption is at its best. In addition, he asserts that the framework that is provided implies that in all the actions that are controlled by the government it has the capability of predicting with certainty the manner in which it will be able to apply the acquired power to intimidate those that it governs[18]. In other words, while the Rule of Law is aimed at guarding individuals against any form of exploitation through governed based authority it also provides the executives with more predictable grounds for the use of coercion. This is because it involves giving certain persons the power of ruling and making different decisions on behalf of the larger majority[19]. Predictions on what societal wellness are never accurate because the needs of the populace differ with time. In this sense, while the concept mainly asserts on equality and superiority of the law that is never the case since the government utilizes its power as coercion which shows that although it is bound to obey the same law it utilizes the framework for its gains thus equality is not achievable. This is well illustrated by the case of Harden and Lewis (1988) which demonstrate the concept as just a pure intimidation[20].

The Rule of Law is one of the most dynamic theory that is in a way challenging to describe and every individual holds their customized strategies for describing the law[21]. In that, there are some individuals that believe that the law is superlative but others believe that it is mainly characterized by a number of features such as constancy, intelligibility, and universality. In that, while Dicey believes that the Rule of Law should mainly be governed by equality while seeking to create an orderly and principled society Hervek holds that the law has no ability to create equality based on its complexity that makes it hard for governorship to be applied[22]. In this context, the conceptualization can be said that it mainly seeks to promote wellness while ensuring that the government utilizes related sets of principles that seeks to promote justice as well as protect individual’s rights[23].

Based on both schools of thoughts with respect to the Rule of Law it is apparent that the concept is mainly objected at creating order in the society and encouraging wellness by protecting individual’s rights from execution by the government[24]. The government has the obligation of protecting individuals under its rule by creating a favorable surrounding for coexistence, guarding their rights and emphasizing on law application in different settings. It is rather evident that law exists mainly in written form based on the followed procedure such as the constitution[25]. It is therefore in the case that the principles and values of the law have been violated that Hayek believes that the concept is the source of conflict because even though it decides on what should be done by obeying the law and ensuring that no violations prevail it fails to direct them on what should be done[26]. In that, as the law dictates the government should play part in guarding individual’s rights but fails to illustrate how the goal is to be achieved[27].

Conclusion

In summing up, it is evident that even though the application and content of the Rule of Law concept are not clear its responsibility is to guard individual’s rights against being violated. In that, it protects the public from arbitrary actions by the governments which assert its superiority. There is no person that is above the set law as both the people and the government are expected to obey and acquire guidance from the same law. One thing that both schools of thoughts agree is that the Rule of Law’s framework is mainly intended as guarding individuals against excessive power use by the government. The essential thing in regard to this concept is the fact that it is required to offer provisions and guidance of how a well-performing society is to be developed. It can be agreed that the applicability of the Rule of Law mainly lies in the set legal principles within a given jurisdiction.

 

 

 

 

 

 

 

 

 

 

 

 

 

References

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Barreto, J.M. ed., 2014. Human rights from a third world perspective: Critique, history and international law. Cambridge Scholars Publishing.

Blattman, C., Hartman, A.C. and Blair, R.A., 2014. How to promote order and property rights under weak rule of law? An experiment in changing dispute resolution behavior through community education. American Political Science Review, 108(1), pp.100-120.

Bugaric, B., 2014. Protecting democracy and the rule of law in the European Union: The Hungarian challenge.

Carrera, S. and Den Hertog, L., 2015. Whose Mare? Rule of law challenges in the field of European border surveillance in the Mediterranean. CEPS Liberty and Security in Europe No. 79/January 2015.

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Harden and Lewis (1988), UK

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Waldron, J., 2016. Rule of Law. Retrieved from https://plato.stanford.edu/entries/rule-of-law/

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[1] Ying, Siu, Study of Rule-of-Law Theories Applied in University Management (EESD, 2017)

[2] Barreto, ed., 2014. Human rights from a third world perspective

[3] Government of UK, 2017. Legislation

[4] Humphreys, Simon 2010. Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice.

[5] Loughlin, M. and Tschorne, S., Public law (Routledge 324-337)

[6] Waldron, J., 2016. Rule of Law

[7] Hadfield and Weingast, Bree, Microfoundations of the Rule of Law (2017, Annual Review)

[8] Waldron, J., 2016. Rule of Law

[9] Ying, S, Study of Rule-of-Law Theories Applied in University Management (EESD, 2017)

[10] Government of UK, 2017. Legislation

[11] Waldron, J., 2016. Rule of Law

[12] Ojiako, Chipulu, Marshall and Williams, Tim, 2017. An examination of the ‘rule of law’

[13] Loughlin, M. and Tschorne, S., Public law (Routledge 324-337)

[14] Waldron, J., 2016. Rule of Law

[15] Bugaric, 2014. Protecting democracy and the rule of law in the European Union

[16] Carrera nd Den Hertog, 2015. Rule of law challenges in the field of European border surveillance in the Mediterranean.

[17] Waldron, J., 2016. Rule of Law

[18] Ying, S, Study of Rule-of-Law Theories Applied in University Management (EESD, 2017)

[19] Waldron, J., 2016. Rule of Law

[20] Harden and Lewis (1988), UK

[21] Gupta Pouw, and Ros-Tonen, 2015. Towards an elaborated theory of inclusive development.

[22] Blattman, Hartman and Blair, How to promote order and property rights under weak rule of law? (2014, 108(1)

[23] Waldron, 2016. Rule of Law

[24] McAdams, 2015. The expressive powers of law: Theories and limits

[25] Government of UK, 2017. Legislation

[26] Mitsilegas, 2014. The criminalisation of migration in Europe: challenges for human rights and the rule of law. Springer.

[27] Thornhill, 2017. The Sociology of Constitutions