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What Is the Constitutional Principle of the Rule of Law

In countries such as China and Vietnam, the transition to a market economy has been an important factor on the road to the rule of law, as the rule of law is important for foreign investors and economic development. It is not clear whether the rule of law in countries such as China and Vietnam will be limited to trade issues or other areas, and if so, whether these spillovers will improve the prospects for related values such as democracy and human rights. [63] The rule of law in China has been widely discussed and debated by lawyers and politicians in China. Various organizations are committed to promoting the rule of law. The rule of law implies that everyone is subject to the law, including people who are legislators, law enforcement officers and judges. [8] In this sense, it contrasts with tyranny or oligarchy, where rulers are above the law. The rule of law is a common language in today`s political discourse. We see that it is invoked in all contexts by different political perspectives. The British historian E.P. Thompson has described the rule of law as a “cultural achievement of universal importance” (Thompson, 1975, p. 265). When the idea of the “rule of law” has such appeal, it is not surprising that it is a resource for which political competitions are conducted in the future.

The International Development Law Organization (ADA) is an intergovernmental organization with a focus on the promotion of the rule of law and development. It strives to empower individuals and communities to claim their rights and provides governments with the expertise to make it a reality. [82] It helps emerging and middle-income countries strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity. [83] It is the only intergovernmental organization with an exclusive mandate to promote the rule of law and has experience in more than 170 countries around the world. [84] Others argue that the rule of law has survived, but has been transformed to allow directors to exercise their discretion. For much of American history, the dominant notion of the rule of law in this environment has been a version of the V.A. Dicey`s: “No human being is punishable by law or legally induced to suffer from body or property, except in the case of a clear violation of the law established in the ordinary legal manner in the ordinary courts of the country.” That is to say, individuals should be able to challenge an administrative order by bringing an action before a court of general jurisdiction. As lists of workers` compensation boards, utility boards, and other agencies came into being, it quickly became clear that it was overwhelming for the courts to leave the benefits of specialization, which led to the creation of administrative authorities in the first place, decide for themselves whether judges would decide all the facts in a dispute themselves (for example. B the extent of an offence in a workers` compensation case). Even Charles Evans Hughes, a chief justice of the United States, believed, “You must have an administration, and you must have an administration of administrative officials.” By 1941, a compromise had emerged. If the directors applied procedures that more or less pursued the “ordinary legal nature” of the courts, there was no need to pursue the control of the facts by “the ordinary courts of the country”. That is, if you had your “day at the Commission”, the rule of law did not require another “day in court”.

Thus, Dicey`s rule of law has been transformed into a purely procedural form. [57] The Statute of the Council of Europe characterises the rule of law as one of the fundamental principles on which the creation of the Organisation is based. The government`s Interagency Agreement (EPA) could view the rule of law as a principle of governance.[60] In Canada, administrative law is the rule of law to an underlying constitutional principle that requires government to be governed by law and that all public officials be held accountable for their actions before the ordinary courts. This principle can be divided into seven effects: studies have shown that a weak rule of law (e.g. B discretionary application of regulations) discourages investment. Economists, for example, have found that an increase in discretionary enforcement of regulations has led U.S. companies to abandon international investment. [92] The principle was also discussed by Montesquieu in L`Esprit des lois (1748). [29] The term “rule of law” appears in Samuel Johnson`s Dictionary (1755). [30] The Council of the International Bar Association adopted a resolution in 2009 approving a substantial or “thick” definition of the rule of law [79] The old concept of the rule of law can be distinguished from the rule of law, according to political science professor Li Shuguang: “Difference.

is that the law is of paramount importance in the context of the rule of law and can serve as a control against abuses of power. According to the law, the law is a mere tool for a government that oppresses legalistically. [41] All U.S. government officials, including the president, Supreme Court justices, state justices and legislators, and all members of Congress, are primarily committed to upholding the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. [52] At the same time, the federal government has considerable discretion: Parliament is free to decide what laws it will draft, provided that it remains within the limits of its enumerated powers and respects the constitutionally protected rights of the individual. Similarly, the judiciary has some discretionary power,[53] and the executive also has various discretionary powers, including the discretionary power of the Public Prosecutor`s Office. Ideas about the rule of law have existed since at least the 4th century BC. At the heart of political and legal thought, when Aristotle distinguished the “rule of law” from “that of an individual”. In the 18th century, the French political philosopher Montesquieu developed a doctrine based on the rule of law that opposed the legitimate authority of monarchs to the whims of despots.

Since then, it has profoundly influenced the liberal thinking of the West. The purpose of the law is served by five “elements” of the rule of law: while certain institutional traditions and conventions, as well as written laws, may be important in ensuring that judicial decisions are based on plausible interpretations of existing laws, not a single institutional character of a state should be considered necessary or sufficient for the ideal of the rule of law. The rule of law is not linked to national experience or to a number of institutions in particular, although it may be better served in some countries and by some institutions. Moreover, institutional arrangements that guarantee the rule of law in one community cannot be easily duplicated or transplanted into another. Different communities embody their own judgments on how certain constitutional ideals can be implemented in light of their particular legal and cultural traditions, which of course influence the character of their institutions. Nevertheless, the initial sociological condition of the rule of law is shared across cultures: for the rule of law to be more than an empty principle, most people in a society, including those whose profession is to administer the law, must believe that no person or group should be above the law. Outside of a number of states and territories, there is a huge gap across the continent between the rhetoric of the rule of law and reality. .