What is the rule of law? Overview of the contents of the Constitution, ECHR, International Covenant on Civil and Political Rights, Human Rights
Rule of law
One rule of law is a status where the basis of state authority in the straight is laid down and where the exercise of this authority in all its forms is placed under the rule of law.[1] The rule of law idea was developed against the practice of absolute monarchs (such as Louis XIV). Based on the rule of law, arbitrariness can be prevented and legal certainty and legal equality can be promoted. In a rule of law, citizens are protected from state power by whet. Independent justices can judge in the event of a conflict and be expected to follow the laws. A judge can in case of offences sanctions impose that are regulated by law. If the judges in a state are not independent, that state should not be called the rule of law.
It is important that not only the legal subordinate, but also the government is bound by these laws. In the Latin this is summarized with the following proverb: patere legem quam ipse fecisti (face the law you made yourself).
Often, the terms are democracy and rule of law used interchangeably, but a democracy does not necessarily have to be a rule of law, and a rule of law is not necessarily a democracy.
Contents
Elements of rule of law
A rule of law is a state where government power is restricted by law (as the word itself suggests). And law is more than a system of laws. By definition, if a government or an official abuses its power, there is not the rule of law, but a lack of it. In a rule of law, there is a balance between too many and a shortage of rules and laws can stand the substantive test of criticism.
Because of the above, people now often talk about the rule of law instead of The Rule of Law. According to some state legal scholars, it is useful to consider the rule of law as a virtue for organizations, as a positive character trait, therefore. Integrity can be seen as a component of the rule of law.
The following are considered to be important elements of the rule of law:
- Constitution and principle of legality
- The previous one rule of law
- Separation of powers, trias politica
- Independent jurisdiction
- Fundamental rights
Constitution
The constitution is the most important element of the rule of law. This attributes and regulates the powers of the various governments.
- The constitution can be written or unwritten. Written part = constitution. Comparable is the terminology material/formal constitution.
- The constitution can be flexible or rigid, with an aggravated or ordinary amendment procedure. See 137 Gw. The Netherlands has a rigid constitution: changes require a large majority. By the way, a constitution does not guarantee the rule of law; for example, the world has a large number of dictatorships with excellent constitutions.
Examples
The Dutch Constitution
- Statute for the Kingdom of the Netherlands
- Dutch Constitution
- certain international legal provisions based thereon. See 93/94 Gw.
- based on it organic laws (law concerning the structure of the state prescribed by the Constitution), e.g. Electoral law, Provincial Act, Municipal Act
- Constitutional law common law or unwritten constitutional law. The most important example is the trust rule; another example of common law is the homogeneity rule, according to which the council of ministers speaks with one mouth (compare 45 paragraph 3 Constitution).
The Belgian Constitution
Details of the constitutional law
Common law is usually subject to the requirements of common practice (usus) and one shared by many legal view (legal opinion). The special thing about constitutional law is that both requirements do not apply as strongly. As for the prevailing requirement: even on the basis of one event, constitutional common law can already arise. As for the requirement for shared legal views, constitutional law is in a way autonomous: those to whom it applies determine its content and status themselves. Of course, parliamentary common law requires a majority in parliament. The trust rule would not work if it were not based on shared opinions. Now that constitutional law is autonomous, those to whom it applies can also determine that a particular custom does not exercise a normative appeal (it should follow), but that there is only political custom or convention (such as Prinsjesdag). In certain cases, it is not clear whether there is a maxim or a rule of the game. For example, are the unwritten conventions around the cabinet formation common law or just a convention?
Principle of legality
It principle of legality means that all government action is based on general, repeatable application rules of law, established pursuant to attribution whether delegation. Legislative, judicial and executive bodies themselves are also bound by law. The binding of the judiciary to the law is also evident from the so-called presumption of innocence: people should be presumed innocent until proven otherwise. They should not be imprisoned or otherwise punished if it cannot be proven that they have broken a law.
Prior rule of law
The previous one rule of law means that new laws cannot be applied retroactively: you cannot be convicted afterwards for an action that was not prohibited at the time it occurred. Admittedly, this applies nulla poena-principle, in principle, especially for the criminal law, yet this requirement is generally subject to all provisions that are far-reaching for citizens.
Separation of powers
Separation of powers is an essential element of the rule of law. Different offices with their own powers control each other. Because of this term derived from English state doctrine checks and balances, it prevents a certain government apparatus from abusing its power. This is why it is important that the regulator and the executor of a ruling may not be united in one office. Otherwise, government officials can too easily take advantage of self-designed rules on citizens. A system according to trias politica of Montesquieu can secure the separation of powers, but also other forms of separation of powers (parliamentary system, vertical separation of power) can promote the rule of law. In the US Constitution, this idea has developed into a system of balance of power (checks and balances). The fact that the Netherlands has not strictly applied the separation of powers, according to Montesquieu, is evident, among other things, from the procedure of formal legislation. One formal law is not only created by the Parliament, also the agreement of the executive branch is required for this (see article 81 of the Constitution). On the other hand, the government as an executive, an independent authority to enforce substantive laws and regulations with the help of General Management Measures (see article 89 of the Constitution).
Independent jurisdiction
Independent jurisdiction and the resulting therefrom legal protection against the government is an essential element of rule of law.
Fundamental rights
Fundamental rights are an important element of rule of law. In the first instance, this concerns classical fundamental rights. After all, these are immune rights who protect nationals from the government:
- (Dutch) Constitution articles 1 to 17,
- ECHR The European Convention for the Protection of Human Rights and Fundamental Freedoms
- ICCPR The International Covenant on Civil and Political Rights
They guarantee a state-free atmosphere for citizens. Features: The characteristics of these rules are:
- government abstention
- legally enforceable.
In the twentieth century, people are fundamental social rights also to the rule of law idea going to count. Strictly speaking, they do not fit in, because they are actually expanding the power of the government.
Features:
- government intervention
- legally unenforceable.
It's about government instruction standards. Arts 18 to 23 (Dutch) Gw, ESH, IVESCR A number of fundamental rights are set out in the European Convention on Human Rights and Fundamental Freedoms (VERM). However, the rights and laws presented are never an exhaustive description of the term rule of law; after all, according to Witteveen, this is a essentially contested concept.
Democracy and rule of law
In the current view, democracy is often regarded as an indispensable element of the rule of law. Yet, historically and logically, democracy is not necessarily part of the rule of law idea. Theoretically, one can therefore imagine a rule of law where the government is bound by previous rules, respects citizens' fundamental rights and has offices that control each other, without the government being democratically elected and without the rules being democratically established. In this way, a democracy that does not form the rule of law is also theoretically possible, if, for example, every dispute via televoting will be settled, regardless of existing rules. So how can democracy still be applied to the classic rule of law idea? It could be said that democracy gives citizens the ability to influence and correct elements of government power. In that sense pot contributing to the checks and balances. this need by the way: democracy can allow opinions and choices that lean towards absolutism and totalitarianism. Then a democracy opposes the restriction of the exercise of power by the government as intended by the rule of law. The rule of law also protects the rights of minorities and, if necessary, sometimes against a democratic majority. Democracy can therefore be a friend, but also an enemy, of the rule of law. In other words, the rule of law can be seen as a correction to the excesses of a democracy that is too rigorous.
See also
External link
Sources, notes and/or references↑ Burkens, M.C. (2017). Principles of the democratic rule of law (8th edition). Deventer, Netherlands: Wolters Kluwer, (p. 41).
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