Against the idea of “occasional positivism,” Jeremy Waldron argues that Lon Fuller`s formal rule of law must be complemented by a procedural emphasis on the rule of law.131 The rule of law is not only about the existence of general rules, but also about their operationalization in the activities of the judiciary. which should, inter alia, respect the principles of fairness and due process.132 The complementarity between formal and more procedural conceptions of the rule of law does not exclude the inherent tension between the need for security and the need for flexibility in the application of the law to the specificities of a particular case.133 With these two complementary perspectives, The rule of law is directly linked to the political ideals of separation of powers and independence of the judiciary. Indeed, “no legal advice will be appropriate if it does not give a central role to institutions such as the courts and their particular procedures and practices”. [134] Canon law (from the Greek canon, a “criterion right, rule”) is a set of ordinances and ordinances issued by ecclesiastical authority (church leadership) for the direction of a Christian church or organization and its members. It is the internal ecclesiastical law that governs the Catholic Church (both the Latin Church and the Eastern Catholic Church), the Eastern Orthodox and Eastern Orthodox Churches, and the various national Churches within the Anglican Communion. [107] The manner in which this canon law is legislated, interpreted and sometimes decided varies considerably between these three ecclesiastical bodies. In all three traditions, a canon was originally[108] a rule adopted by an ecclesiastical council; These canons formed the basis of canon law. The process of translating a legislative proposal into law is complex and multifaceted. To learn more about the origin of federal and state laws, read Brien Roche`s much-loved book, Law 101, published by Sphinx Publishing. Aristotle already indirectly pointed out the conceptual limitation of the formal rule of law, acknowledging that “laws . should be authoritative. Laws are necessarily bad or excellent and just or unjust in a manner similar to the regimes to which they belong.
137 That normative distinction shows that the existence of a formal system of general, comprehensible, coherent, transparent, non-retroactive rules, properly implemented and applied is not sufficient from the point of view of the substantive rule of law. Jeremy Waldron therefore points out that “not all command and control systems that call themselves a legal system are legal systems”.138 David Dyzenhaus speaks of “evil legal systems” to describe these legal systems, which have become instruments of political regimes whose nature simply rejects the idea of the rule of law. for example: in the case of South Africa under the apartheid government. His argumentation and in-depth case study call for the inclusion of moral elements in the examination and reflection of legal systems.139 His support for a substantive version of the rule of law also assigns a special role to judges, who must maintain a substantive version of the rule of law in order to highlight the characteristics of what government and the rule of law are.140 Constitutional and Administrative law governs cases of the State. Constitutional law concerns the relations between the executive, legislative and judicial branches as well as the human rights or civil liberties of the individual vis-à-vis the State. Most jurisdictions, such as the United States and France, have a single constitution codified with a bill of rights. A few, such as the United Kingdom, do not have such a document. A “constitution” is simply the laws that make up the political system, composed of law, jurisprudence and conventions. A case entitled Entick v.
Carrington[184] illustrates a constitutional principle derived from the common law. Entink`s house was searched and searched by Sheriff Carrington. When Entick complained in court, Sheriff Carrington argued that a warrant for his arrest issued by a minister, the Earl of Halifax, was a valid authority. However, there was no written legal regulation or judicial authority. Chief Justice Lord Camden said: The Constitution of the United States is therefore our “supreme law of the land” (in his own words). Everything in it is binding. Think of the Constitution as the “ultimate” source of law, the source from which everyone draws. Federal, state, legal and administrative laws must conform to the rules of the Constitution. [2] The Constitution of the United States is internationally revered for its organization, subject, and novelty at the time of ratification. [3] Anarchism was practiced in society in much of the world. Anarchist mass communities ranging from Syria to the United States exist and range from hundreds to millions. Anarchism encompasses a wide range of socio-political philosophies with different tendencies and implementations.
The etymology of bureaucracy is derived from the French word for office (office) and the ancient Greek word for word power (kratos). [147] Like the military and police, government officials and the organs of a legal system that make up its bureaucracy carry out decrees. One of the earliest references to the concept comes from Baron de Grimm, a German writer who lived in France. In 1765 he wrote: (ii) “The quality before the law, or the equal submission of all classes to the ordinary courts; The rule of law excludes any exemption of civil servants or others from the duty to obey the law. The German rule of law is a philosophical and theoretical concept developed in Prussia in response to the police state of the nineteenth century. The highly normative identity of the rule of law can be understood as a reaction to the arbitrariness and violence existing in the private and public spheres.19 It is therefore not surprising that the philosophical and theoretical origins of the rule of law lie in Kant`s reflection on justice and rights: jurists have also produced all sorts of legal sanctions. Around 130 AD, the jurist Salvius Iulianus drafted a standard form of praetorian edict, which was used by all praetors from that time on. This edict contained detailed descriptions of all cases in which the praetor authorized a claim and in which he granted a defense. The standard edict thus functioned as a complete legal code, even if it did not formally have the force of law.
He stressed the prerequisites for a successful trial. The edict thus became the basis for many legal commentaries by later classical jurists such as Paul and Ulpian. The new legal concepts and institutions developed by preclassical and classical jurists are too numerous to mention here. Here are some examples: 150 The new Chinese leftism is a movement of intellectuals very active in the public debate of the 1990s. Their thoughts are fueled by a fierce critique of Western capitalism and liberal democracies, which they say have had too much influence on China`s post-opening-up and reformist society. They reject the excess of capitalism, the idea of the universality of human rights, and promote a return to the socialist model. Li He, “Chinese Intellectual Discourse on Democracy” (2014) 19 Journal of Chinese Political Science 289, p. 304. Against these substantive and normative foundations, legal positivist thought, as developed in the works of Hans Kelsen, has developed a very sharp critique of rule of law theory. Hans Kelsen essentially argued that the wording of the rule of law itself was a “pleonasm”25 in the sense that “every state is a state governed by the rule of law”.26 Kelsen`s critique of the rule of law referred not only to the terminology used; Kelsen also directly criticized the normative underpinnings of the rule of law when he pointed out that the validity of law cannot be inferred from predetermined values:27 Legal definitions often raise the question of the extent to which law includes morality. [42] John Austin`s utilitarian response was that the law was “orders, aided by the threat of sanctions, from a sovereign whom men are accustomed to obey.” [36] Naturalist jurists, on the other hand, such as Jean-Jacques Rousseau, argue that law essentially reflects the moral and immutable laws of nature. The concept of “natural law” emerged in ancient Greek philosophy simultaneously and in conjunction with the concept of justice, and returned to the mainstream of Western culture through the writings of Thomas Aquinas, especially his treatise on law.
The three legal traditions described above, despite their fundamental differences, share some common characteristics. In this regard, the rule of law has served as a principle in all three legal traditions to reject the “unbridled and irresponsible royal power” of monarchs.63 The rule of law means that society is governed by law and that the ruler can only make decisions in accordance with the law, while being subject to the law. self. The rule of law is therefore the ultimate obstacle against human domination, arbitrariness of rulers and illegal violence. It also provides citizens with concrete tools to compel authorities to act within the limits set by law. However, the rule of law is not intended to transform the unbridled power of the sovereign into an unbridled power of the legislative or judicial power. Indeed, the rule of law is also characterised by the search for a good balance between the executive, legislative and judicial powers. A judiciary is theoretically bound by the constitution, just like all other organs of the state.