Define Legal Theory Rule of Law

In a crime collection, for example, Oliver Wendell Holmes and Benjamin Cardozo find themselves on opposite pages of a crossing conflict. They do not agree on the standard of conduct that should define the duties of a driver who reports to an unsupervised crossing. Holmes proposes a rule: the driver must stop and look. Cardozo rejects the rule and instead proposes a standard: the driver must act with reasonable caution. What is the preferred approach? Holmes suggests that the due diligence requirements at grade crossings are clear and that these obligations should therefore be crystallized into a simple rule of law. Cardozo thwarts scenarios in which it would be neither wise nor wise for a driver to stop and look. Holmes could very well have answered that Cardoco`s scenarios are exceptions and that exceptions confirm the rule. In fact, Holmes could have countered by suggesting that the definition of a standard of conduct by means of a legal standard is predictable and secure, while standards and juries are not. This dispute could continue for some time.

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. 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 ideal of the rule of law dates back at least to Aristotle and is deeply rooted in the public political cultures of most modern democratic societies. For example, the 1948 Universal Declaration of Human Rights stated that “while man is not to claim as a last resort against tyranny and oppression, human rights are protected by the rule of law.” Although the ideal of the rule of law has been criticized on the grounds that it is an ideological construct that masks power relations, even some critics acknowledge that maintaining the ideal could curb the abuse of the powerless by the powerful. Concept in relation to five (different) “objectives” of the rule of law: The influence of Britain, France and the United States has helped spread the principle of the rule of law to other countries around the world. [33] [34] The rules themselves vary – let`s use hard and soft to designate the poles of a continuum. A rule is more difficult when the conditions of its application and the following consequences are defined by clear distinctions that allow for simple application. The rule that excludes people who are under 35 years of age from eligibility for the presidency of the United States is quite harsh or rigid.

Rules become more flexible when they become unclear application criteria and/or the consequences they entail. If the Constitution had limited the presidency to “adults,” there might have been cases where the question of whether a particular candidate was unclear. Twelve-year-olds are clearly not adults, but twenty-five-year-olds clearly are. In between, the need to draw a somewhat arbitrary line makes the “adult” rule relatively softer than the “35 years” rule. Others, such as Richard Epstein (2011:10), accept that “the rule of law … eine vom Privateigentum getrennte Konzeption`. However, they believe that a conditional link can be established between the rule of law and private property by showing that the forms of regulation that are of concern to advocates of private property tend to be forms of regulation that the rule of law prohibits, even with a stricter conception. Another point.

Whether international institutions themselves – such as the United Nations and its organizations – should be bound by the rule of law remains controversial. This is strange because these agencies are among the most vocal advocates of the rule of law with respect to its application to nation-states. The reluctance here stems largely from an assessment of the importance of diplomatic immunity. UN officials fear that if they and their agencies are held legally responsible for misconduct of various kinds related to peacekeeping activities, there is a risk that the entire basis for international action will be unravelled. However, the danger is probably exaggerated, and those who make this argument would not tolerate a similar argument in the realm of nation-states for a while. Unfortunately, after establishing this requirement, Locke complicated matters by adding an essential principle of respect for private property: “The supreme power cannot take any part of its property away from a man without its own consent,” and any law purporting to do so has no validity (Locke 1689: § 138). But there is also a difficulty. Although Locke presented us with his own theory of pre-political property rights—the so-called “theory of labor” in the fifth chapter of the second treatise—itself was anything but undisputed. The people of our time, like his, disagree on rival claims to work and occupation; they do not agree on the context of the co-ownership; And they disagree on the extent to which someone can appropriate and the sensitivity of their appropriation to the needs of others. We disagree on all of this – in a way that has become clear, for example, in the debates on Locke`s theory by Robert Nozick (1974). And Locke and his contemporaries disagreed either; Locke knew this and pointed out in several places that he knew how controversial all this was (Tully 1980: 64 ff; for Locke`s awareness of controversies, see Waldron 1999: 74-5). The extent to which the Company is bound by law engages in processes that ensure the guarantee of property rights according to legal rules that are applied in a predictable manner and are not subject to the whims of certain people.

Commitment to such processes is the essence of the rule of law. Cass (2004:131) The rule of law is often cited as the key to nation-building and building new democracies. In fact, it is often supported (e.g., Barro, 2000), that a new state needs constitutional institutions – effective courts and trade laws that can guarantee property rights and treaty enforcement – more or even before it needs democratic institutions such as an elected legislature. It is said that a legal system in a developing country dominated by legislative action does not inspire confidence and does not create the stability required by modern governance and investment. (To discuss these arguments, see Carothers 1998 and, more critically, Carothers 2009.) This once again raises the question of the relationship between the rule of law and legislation – but it now also leads us to consider a rather unpleasantly direct compromise between constitutional values and democracy. It is also widely accepted — but not necessarily by the same people who associate legality with property — that a system of positive law that does not respect fundamental human rights should not be worthy of the term “rule of law”. The World Justice Project quoted Arthur Chaskalson, the former Chief Justice of South Africa, as saying: John Locke, in the second of his two governing treaties (1689), stressed the importance of governance through “permanent laws established, promulgated and known to the people.” He compared this to the rule by “exemporative arbitrary decrees” (Locke 1689: §§135-7). Now, the term “arbitrary” can mean many different things. Sometimes it means “oppressive.” But when Locke distinguished the rule of permanent laws from arbitrary decrees, it was not the oppressive feeling of “arbitrariness” he had in mind. In this context, something is arbitrary, because it is contemporary: there is no note of it; The sovereign simply discovers it as he progresses.

It is the arbitrariness of unpredictability not knowing what one can count on to be subjugated, as Locke (1689: § 137) said, to be subjected to someone Apart from a number of states and territories, there is a great gap between the rhetoric of the rule of law and reality across the continent. In Thailand, the police favor the rich and the corrupt. In Cambodia, judges are deputies of the ruling political party. Whether a judge harbours political prejudice or applies the law unevenly is the least concern for an ordinary defendant in Asia.