What Is the Substantive Rule of Law
(2) In the 1970s, Hayek began to rethink all this. Attention is always focused on the implications of the rule of law for freedom. But now Hayek has begun to wonder whether the texts of clear general legal rules would really provide an appropriate framework for freedom. It is a mistake to believe that “by limiting the judge to apply rules that have already been set out, we will increase the predictability of his decisions.” Articulated rules are “often a very imperfect formulation of principles that people are better able to honor in deeds than to express in words” (Hayek 1973:118). Instead, he preferred a common law predictability model, with principles and solutions emerging from a series of court decisions in an almost evolutionary manner. [1] The development of principles distinguished by their relevance was superior to the deliberate imposition of rules by a legislator, Hayek thought. According to Hayek, the legislative mentality is inherently managerial; it is mainly oriented towards the organization of the administrative apparatus specific to the State; And its expansion into the realm of public order usually means an external projection of this type of management mentality with terrible consequences for freedom and markets. The Oxford English Dictionary has defined the rule of law in this way:[2] Some modern scholars argue that the rule of law has been corroded over the past century by the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound. For example, Brian Tamanah asserts, “The rule of law is a centuries-old ideal, but the idea that the law is a means to an end has only solidified over the course of the nineteenth and twentieth centuries.” [56] These ideas claim to bring a touch of reality to our discussions about freedom. In the circumstances of modern life, there may be no escape from legal constraints, but freedom is still possible if people know in advance how the law will work and how they should act to avoid its application. Knowing in advance how the law will work can make plans and circumvent its requirements (see Hayek 1960:153 and 156–7). And knowing that you can count on the protection of property and personal rights by law gives every citizen some certainty about what they can count on when dealing with other people. The rule of law is therefore violated when the standards applied by civil servants do not correspond to the standards made public to citizens, or when officials act on the basis of their own discretion and not on the basis of standards established in advance.
If such action becomes endemic, not only will people`s expectations be disappointed, but they will be increasingly unable to form expectations they can rely on, and the horizons of their planning and economic activity will shrink as a result. Thomas Hobbes can be considered a theoretician of the rule of law. In a society whose members disagree on property, he considered it conducive to peace for the ruler of a society “to establish and publicly explain common rules for all peoples, through which each person can know how to call his own, what another can do” (Hobbes 1647: Bk. II, chap. 6, Section (ix). But Hobbes also thought that it would undermine peace—in fact, it would undermine the logic of sovereignty—if the ultimate legislator were bound by the laws he applied to his subjects (Hobbes 1991 [1651]:184). The rule of law is defined in the Oxford English Dictionary as “[t]he authority and influence of law in society, particularly when seen as a constraint on individual and institutional behaviour; (hence the principle that all members of a society (including those who are part of the government) are also subject to publicly disclosed jurisdictions and processes. [ 2] The term rule of law is closely linked to constitutionalism and the rule of law and refers to a political situation, not a specific rule of law. [3] [4] [5] The rule of law applies not only within national communities, but also increasingly among themselves, but in this area its application remains under-theorized (for a useful discussion, see Crawford 2003). Much of the work that has been done on the international rule of law simply uncritically adopts the views of those at the national level that the rule of law requires determination, clarity and predictability (see Chesterman 2008).
However, this can be misunderstood when we talk about states and not individuals as legal entities (Waldron 2011b). States are much better informed of their legal requirements than men and women in society, as they are parties to treaties and practices that establish international law. (Perhaps, however, this point does not apply to the same extent when we consider the dark depths of customary international law.) In the second half of the 19th century, Albert Venn Dicey deplored what he saw as a decline in respect for the rule of law in England. The rule of law was a proud tradition that distinguished governance in England from both the executive dominance of administrative law in France and the stupid and abstract certainties of paper constitutions in countries like Belgium, etc. For Dicey, the key to the rule of law was legal equality: the preamble to the European Convention for the Protection of Human Rights and Fundamental Freedoms states: “Like-minded governments of European countries with a common heritage of political traditions, ideals, freedom and the rule of law.” Various organizations are committed to promoting the rule of law. Rule of law” means first and foremost “protection of property rights”. [90] Economist F. A. Hayek analyzed how the rule of law could benefit the free market. Hayek suggested that people subject to the rule of law would be able to make smart investments and future plans with some confidence in a successful return on investment, when he said: “Under the rule of law, the government is prevented from reducing individual efforts through ad hoc measures.
Under the known rules of the game, individuals are free to pursue their personal goals and desires, knowing that government powers are not intentionally being used to thwart their efforts. [91] The Finnish Constitution explicitly prescribes the rule of law by stipulating that “the exercise of sovereign powers is based on a law. In any public activity, the law must be strictly adhered to. Sometimes situations can be resolved and disputes settled by informal social norms, rather than by formally promulgated and enforced positive law (Ellickson 1994). Opinions differ as to whether this should be seen as something completely different from the rule of law. On the one hand, it is a real alternative, and not much is gained by adapting its desirable characteristics, as they are, to the requirements of the rule of law. On the other hand, it has something in common with the understanding of customary law and concepts of the rule of law (such as Hayek`s in 1973), which seek to separate from decrees and laws. It is also sometimes said that the rule of law works best when what is applied in a society can be matched to the standards of fairness and common sense of its members. This makes social participation in integrity and law enforcement more likely (Cooter, 1997). The closer this mapping gets, the less there is to invest in a formal legal statement: ordinary know-how can become a reliable guide to legal knowledge. However, you need to be very careful here. Modern law is necessarily technical in a way that far exceeds the possibilities of intuitive understanding (Weber 1968 [1922]: 882-95).
The best thing to look forward to is some sort of occasional correspondence between promulgated law and informal agreements, and the sporadic nature of this may increase rather than reduce unpredictability. East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as the rule of benevolent and virtuous rulers, and legalism, which advocated strict adherence to the law. The influence of one school of thought on the other has changed over the centuries. A study shows that in East Asia, only South Korea, Singapore, Japan, Taiwan and Hong Kong have companies strongly committed to a state bound by law. [61] According to Awzar Thi, a member of the Asian Commission on Human Rights, the rule of law in Cambodia and most of Asia is weak or non-existent: the rule of law is an ideal in a set of values that dominate liberal political morality: others include democracy, human rights, social justice, and economic freedom. The plurality of these values seems to suggest that there are several ways to evaluate social and political systems, and these do not necessarily fit together properly. Some legal philosophers (e.B. Raz 1977) insist for reasons of analytical clarity that the rule of law in particular must be distinguished from democracy, human rights and social justice.
They limit the emphasis of the rule of law to the formal and procedural aspects of State institutions, regardless of the content of the policies they implement. .