In our society, we are often told that the Rule of Law is a formal ideal. While this is certainly true in some cases, the Rule of Law also has a substantive dimension. Many jurists believe that the formal/procedural aspects of a rule generate momentum in the substantive direction. Moreover, the generality of a rule of law is said to contain the germ of justice. Stability, publicity, and clarity are some of the aspects that are associated with the Rule of Law.
Principles of the Rule of Law
The Rule of Law is a set of principles that govern the exercise of power by those in authority. The basic requirement of this rule is that laws be made in accordance with well-established public norms. The rule also demands that laws be proactive in their application and that they be public. This means that a law can only be valid if it is known in advance and applied to the general public.
Another aspect of the Rule of Law is that it must protect the basic human rights of all persons within society. As a result, the fifth principle of the Rule of Law states that laws must be just. It also draws a distinction between governments that are subject to the rule of law and those that are not. The example of Nazi Germany shows that a country can have some elements of the Rule of Law and still be governed by a dictatorship.
Origins of the Rule of Law
The Rule of Law is a fundamental principle that states that no one is above the law. Its origins come from the French phrase la principle de legalite, which refers to government based on principles of law, in opposition to arbitrary power. As it is practiced in many societies, the Rule of Law aims to protect the rights and freedoms of individuals.
This principle is linked to constitutional principles regarding the separation of powers, which can help to ensure a more just society. The separation of powers is justified by the unhealthy concentration of power in a society, and distinguishes the stages of making and applying laws.
In its most basic form, law is just an abstract statement of what should not be done. This is what Jhering called “the outer side of the law”. But there are other elements of law, too. These include norms and social imperatives. As Jhering shows, the rule of law is not just a set of rules, but also a guiding principle for human conduct.
Legal philosophers often focus on the formal elements of law, including the general norms that should govern the state, the rule of law, and the independence of the judiciary. They also mention a general presumption in favor of freedom and justice.
Procedural elements of law are those laws that deal with the process by which courts carry out legal actions. They differ from substantive laws, which determine the actual laws. Procedural laws are necessary for ensuring that legal issues are handled in a proper manner. They also describe the duties of judges.
Procedural elements of law include laws that establish how courts process claims and determine the validity of a judgment. They include rules that regulate the pleading and practice requirements, evidence requirements, appeals, and the representation of counsel.
Substantive ideals in law can be useful for achieving a racial and gender equality in law. They are also important as framing devices in social debates. Among these ideals are formal equality, which requires that all people are treated equally, and substantive equality, which requires that the participants of a social practice be treated equally. While procedural equality has received less scholarly attention, it is nonetheless an important aspect of law.
Aristotle’s principle of justice required that like cases be treated equally. This principle of justice is implicit in the Aristotelian principle of proportional equality, which calls for similar portions for persons with similar merit or desert. Aristotle endorsed this principle when discussing distributional challenges, arguing that merit should be a priority over type, resulting in fairness for everyone.