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What is the Rule of Law

Rule of Law is the requirement that the state provide legal guarantees for rights which uphold the dignity of the individual.

In fact, the rule of law does not have a precise definition, and its meaning can vary between different nations and legal traditions. Generally, however, it can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions.  In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.

Elements of the Rule of Law

In his book The Morality of Law, American legal scholar Lon Fuller identified eight elements of law which have been recognized as necessary for a society aspiring to institute the rule of law. Fuller stated the following:

1.  Laws must exist and those laws should be obeyed by all, including government officials.
2.  Laws must be published.
3.  Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed.
4.  Laws should be written with reasonable clarity to avoid unfair enforcement.
5.  Law must avoid contradictions. 
6.  Law must not command the impossible.
7.  Law must stay constant through time to allow the formalization of rules; however, law also must allow for timely revision when the underlying social and political circumstances have changed.
8.  Official action should be consistent with the declared rule. 

The Rule of Law according to Joseph Raz

In “The Rule of Law and its Virtue” (OSCOLA citation [1997]93 LQR 195), the constitutional theorist Joseph Raz identified the constituent principles of his conception of the rule of law. Raz’s conception encompasses the additional requirements of guiding the individual’s behaviour and minimising the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the great constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. From this general conception he stated that some of the most important principles were:

1. That laws should be prospective rather than retroactive.
2. Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
3. There should be clear rules and procedures for making laws.
4. The independence of the judiciary has to be guaranteed.
5. The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
6. The courts should have the power to review the way in which the other principles are implemented.
7. The courts should be accessible; no man may be denied justice.
8. The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.



 

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