Rule of Law
See also the discussion of the rule of law in our Working Paper on Text-driven Normativity.
- The rule of law (état de droit, Rechtsstaat) is the implied philosophy of modern positive law
- It refers to the institutionalisation of checks and balances within the state, making sure that countervailing powers keep each other in check, thus preventing arbitrary exercise of public power.
- The difference between rule of law and rule by law refers to the difference between, on the one hand, a law that is both an instrument of public policy and an instrument of protection and, on the other hand, a law that is nothing but an instrument to achieve public policy goals.
- rule of law implies legality, meaning that state powers can only be exercised within the bandwidth of the power attributed for specified and legitimate purposes, taking into account human rights while respecting independent judicial review. Rule by law may refer to legalism, where state powers can be and must be exercised in accordance with the will of the legislator, or to absolutism, where the state has discretionary powers to achieve their objectives as long as these powers have been attributed in accordance with specified procedures.
- In Anglo-American legal philosophy rule of law is often equated with conditions such as accessibility, clarity, generality, non-contradiction, non-retroactive application, feasibility and foreseeability, coupled with the notion of an independent judiciary (Fuller). A difference is often made between a thin and a thick version, depending on whether conditions are more formal or more substantive. In the latter case more attention is given to human rights protection, including social and cultural rights. Others, however, pay keen attention to rights of contestation against the state (Dicey), and to procedural conditions that enable contestation and argumentation as core to the rule of law (Waldron), and to formal characteristics that can constrain what a legitimate legal rule can possibly be (Wintgens).
- In continental European legal theory the Rechtsstaat or Etat de Droit can similarly be seen in a more formal or substantive way, with keen attention to the extent to which the powers of the state are limited, including the question of whether states have positive obligations to ensure respect for human rights in both the public and the private sphere.
- Note that the rule of law, including the protection of human rights depend on positive law.
- In the context of COHUBICOL we take a substantive and procedural perspective on the rule of law, integrating a formal perspective in a way that embraces legality while rejecting both legalism and arbitrary rule, incorporating ‘practical and effective’ protection of human rights and access to an independent court to ensure the contestability of actions or decisions in the public or private sphere that may violate rights or obligations.