Rule according to higher law

The rule according to a higher law means that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice.[1] Thus, the rule according to a higher law may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a government, even though acting in conformity with clearly defined and properly enacted legal rules, still produces results which many observers find unfair or unjust.[2]

Overview

The idea of a law of ultimate justice over and above the momentary law of the state—a higher law—was first introduced into post-Roman Europe by the Catholic canon law jurists.[3] "Higher law" can be interpreted in this context as the divine or natural law or basic legal values, established in the international law – the choice depending on the viewpoint. But this is definitely a Law above the law.[4] And it is in this capacity that it possesses the equal legal value for both the common and civil law jurisdictions, as opposed to natural law which is largely associated with common law.[5] "To recognize the necessary connection between the rule of law as an ideal and well-constructed constitutional government does not and should not be taken to imply that all states can or should maintain the same constitutional structures in practice".[6]

The rule according to higher law is a practical approach to the implementation of the higher law theory which creates a bridge of mutual understanding (with regard to universal legal values) between the English language doctrine of the rule of law, traditional for the countries of common law, and the originally German doctrine of Rechtsstaat, translated into other languages of continental Europe as État de droit (Fr.), Estado de derecho (Sp.), Stato di diritto (It.), and Правовое государство (Ru.).[7] The latter doctrine is the product of continental European legal thought which had adopted it from German legal philosophy. Its name can be translated into English as "state of law" —meaning the state in which the exercise of governmental power is kept in check by the higher law rather than by the changeable law established by this state. Amartya Sen mentioned that the legal theorists in ancient India used term of classical Sanskrit "nyāya" in the sense of not just a matter of judging institutions and rules, but of judging the societies themselves.[8]

Examples

Before the U.S. Civil War, African Americans were legally denied equal rights and freedoms pursuant to formally valid codes prescribing the relations between master and slave. Although these codes were de jure fully suitable for application in legal practice, their enforcement by the then U.S. government de facto violated basic human rights of a significant part of the population. William H. Seward famously proclaimed that slavery is forbidden under "a higher law than the Constitution."

Generally speaking, the occurrence of such "justly enacted unjust laws" fully depends on the stance taken by the country's political leadership towards the rule of law principle.

In some countries, the political leaders assert that the rule of law is purely a procedural concept. Therefore, they argue that any government may strip its subjects of their fundamental freedoms or infringe their vital interests so long as this is done by way of a duly implemented legal mechanism. For example, at the Nuremberg trials, in an attempt to justify their crimes against Jewish and Romany population of Europe during World War II, some of the former leaders of Nazi Germany argued that they had broken none of the laws effective when Hitler had been in power. It was only by invoking the rule according to a higher law that the Allied prosecutors were able to overcome such defenses.[9]

In other countries, conversely, the political leaders assert that all written laws must be kept in line with the universal principles of morality, fairness, and justice. These leaders argue that, as a necessary corollary to the axiom that "no one is above the law," the rule of law requires the government to treat all persons equally under the law. However, the proclaimed right to equal treatment is susceptible to instantly becoming void each time the government denies a sufficient level of respect, dignity, and autonomy to a certain class of individuals or to human rights in general."[10] Therefore, the unwritten and universally self-explanatory principles of equality, autonomy, dignity, and respect are said to overrule conventional written laws enacted by the government. It is these principles that are often referred to as "natural law." They also constitute the basis of the "higher law theory".

Rechtsstaat

The Rechtsstaat doctrine (legal state, state of right, constitutional state, constitutional government) was first introduced by the German philosopher Immanuel Kant in his latest works completed after the U.S. and French constitutions had been adopted in the late 18th century.[11] Kant’s approach is based on the supremacy of country’s written constitution created using principles of the Higher Law. This supremacy meant creating guarantees for the implementation of his central idea: a permanently peaceful life as a basic condition for the happiness and prosperity of the citizens. Kant was basing his doctrine exclusively on the idea of constitutionalism and constitutional government.

The Russian legal system, born in the 19th century as a result of the transformations initiated by the reforms of the Emperor Alexander II, was (and still is) based primarily upon the German legal tradition. It was from the latter that Russia had adopted the doctrine of Rechtsstaat, which literally translates as "Legal State." Its closest English analogue is "the rule of law."[12] The Russian Legal state concept adopts the written constitution as the country's supreme law (the rule of constitution). It is a fundamental but undefined principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the very first dispositive provision of Ukraine’s Constitution declares that "Ukraine is a sovereign and independent, democratic, social, legal state." Hence, the effort to invest meaning to the "Legal State" definition is anything but theoretical.

Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003, "Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by the society."[13]

The Russian concept of Legal state has adopted many segments of constitutional economics which serves as a practical implementation of the higher law theory in economics.

Economist James M. Buchanan argues that, in the framework of constitutional government, any governmental intervention or regulation must be conditioned by the three following assumptions. First, every failure of the market economy to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest, unconcerned with their own personal economic well-being. And third, changing the government responsibilities towards more intervention and control will not profoundly and perversely affect the social and economic life.

Buchanan rejects "any organic conception of the state as superior in wisdom, to the individuals who are its members." This philosophical position is, in fact, the very subject matter of constitutional economics. A constitutional economics approach allows for a combined economic and constitutional analysis, helping to avoid a one-dimensional understanding. Buchanan, together with Kant, believes that a constitution in its capacity as the Higher Law, intended for use by at least several generations of citizens, must be able to adjust itself for pragmatic economic decisions, while balancing interests of the state and society against those of individuals, with their constitutional rights to personal freedom and private happiness.

Buchanan also outlines importance of protection of the moral principles underlying constitutional norms. He writes that "the ethics of constitutional citizenship is not directly comparable to ethical behavior in interaction with other persons within the constraints imposed by the rules of an existing regime. An individual may be fully responsible, in the standard ethical sense, and yet fail to meet the ethical requirement of constitutional citizenship."[14]

See also

Notes

  1. ^ West's Encyclopedia of American Law (in 13 volumes), 2nd Ed., edited by Jeffrey Lehman and Shirelle Phelps. Publisher: Thomson Gale, 2004. ISBN 0-7876-6367-0.
  2. ^ M.N.S. Sellers, Republican Legal Theory: The History, Constitution and Purposes of Law in a Free State, Basingstoke, 2004
  3. ^ Wormser, The Story of the LAW, pg. 189
  4. ^ Edward S. Corwin, The “Higher Law” Background of American Constitutional Law (1955).
  5. ^ Leslie F. Goldstein, Popular Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten Law, Journal of Politics 48 (1986): 51–71
  6. ^ Mortimer Sellers, An Introduction. The Rule of Law in Comparative Perspectives, edited by Mortimer Sellers and Tadeusz Tomaszewski, Springer, Heidelberg – London – New York, 2010, pp. 4–5. ISBN 978-90-481-3749-7.
  7. ^ Peter Barenboim, Naeem Sidiqi, Bruges, the Bridge between Civilizations: The 75 Anniversary of the Roerich Pact, Grid Belgium, 2010. ISBN 978-5-98856-114-9
  8. ^ Amartya Sen, Global justice in Global Perspectives on the Rule of Law, edited by James J. Heckman, Robert L. Nelson, Lee Cabating and Paul Lepore, Routledge, London and New York, 2010.
  9. ^ Introductory note by Antonio Cassese for General Assembly resolution 95(I) of 11 December 1946 (Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal) on the website of the UN Audiovisual Library of International Law
  10. ^ Augusto Zimmermann, Constitutions Without Constitutionalism: The Failure of Constitutionalism in Brazil, The Rule of Law in Comparative Perspectives, edited by Mortimer Sellers and Tadeusz Tomaszewski, Springer, Heidelberg – London – New York, 2010, p.101. ISBN 978-90-481-3749-7.
  11. ^ Hayek, Friedrich (1960). The Constitution of Liberty. London: Routledge & Kegan Paul. pp. 196–7.
  12. ^ Peter Barenboim, Defining the rules, The European Lawyer, Issue 90, October 2009.
  13. ^ The World Rule of Law Movement and Russian Legal Reform, edited by Francis Neate and Holly Nielsen, Justitsinform, Moscow, 2007.
  14. ^ Buchanan, J., Logical Formulations of Constitutional Liberty, Vol. 1., Indianapolis, 1999. P. 372.

Bibliography

External links

Communist Party of Pakistan

The Communist Party of Pakistan (abbreviated CPP; Urdu: کمیونسٹ پارٹی آف پاکستان‎) is a communist party in Pakistan.

Constitution of Bulgaria

The Constitution of the Republic of Bulgaria (Bulgarian: Конституция на Република България, Konstitutsia na Republika Balgaria) is the supreme and basic law of the Republic of Bulgaria. The current constitution was adopted on 12 July 1991 by the 7th Grand National Assembly of Bulgaria, and defines the country as a unitary parliamentary republic. It has been amended five times (in 2003, 2005, 2006, 2007, and 2015).

Chronologically, it is the fourth constitution of Bulgaria, the first being the Tarnovo Constitution of 1879. It was immediately preceded by the two Communist-era constitutions–the Dimitrov Constitution (named after Georgi Dimitrov), in force between 1947 and 1971, and the Zhivkov Constitution (named after Todor Zhivkov), in force between 1971 and 1991.

Constitution of Kazakhstan

The Constitution of the Republic of Kazakhstan (Kazakh: Қазақстан Республикасының Конституциясы, Qazaqstan Respýblıkasynyń Konstıtýtsııasy; Russian: Конституция Республики Казахстан, Konstitutsuya Respubliki Kazakhstan) is the highest law of Kazakhstan, as stated in Article 4. The Constitution was approved by referendum on 30 August 1995. This date has since been adopted as the "Constitution Day of the Republic of Kazakhstan".

Constitutional Court of Belarus

The Constitutional Court of Belarus is one of the top-tier courts in the Eastern European country. Created in 1994, the Court is run under guidelines that were issued in 1997. The purpose of the court is to render justice in areas where the constitution has come into question, such as a local law contradicting the constitution. There are 12 judges that sit on the bench, with all having degrees in legal studies, as required by Belarusian law. Six of the judges are appointed by the President while the other six are appointed by the Council of the Republic. Regardless of the manner of appointment, the judges sit on the bench for a term of 11 years.

Constitutional Court of Slovakia

The Constitutional Court of Slovakia (officially Constitutional Court of the Slovak Republic, Slovak: Ústavný súd Slovenskej republiky) is a special court established by the Constitution of Slovakia. Its seat is in Košice in eastern Slovakia. Its head is Ivetta Macejková (since 2007).

Constitutional Tribunal of Ecuador

The Constitutional Tribunal of Ecuador (Spanish: Tribunal Constitucional del Ecuador) is the highest court in Ecuador dealing with constitutional issues. It was created as part of Ecuador's 1996 constitutional reform package. It is composed of nine magistrates.

The Constitutional Tribunal has been affected by Ecuador's recent political crises. In 2005, President Lucio Gutiérrez manipulated his party's modest advantage in Congress to replace numerous justices, including eight of nine members of the Constitutional Tribunal.In 2007, the Tribunal was involved in a confrontation with newly elected President Rafael Correa. On March 9, the Tribunal warned Correa that he would be acting illegally if he ignored its eventual ruling on the constitutionality of a national referendum. Correa responded that the Tribunal was "dominated by the political parties" and that it had no authority to act on the issue. The Tribunal's rulings have often been ignored by Ecuador's presidents and Congress.

Constitutional review

Constitutional review, or constitutionality review or constitutional control, is the evaluation, in some countries, of the constitutionality of the laws. It's supposed to be a system of preventing violation of the rights granted by the constitution, assuring its efficacy, their stability and preservation.

Executive (government)

The executive is the organ exercising authority in and holding responsibility for the governance of a state. The executive executes and enforces law.

In political systems based on the principle of separation of powers, authority is distributed among several branches (executive, legislative, judicial)—an attempt to prevent the concentration of power in the hands of a small group of people. In such a system, the executive does not pass laws (the role of the legislature) or interpret them (the role of the judiciary). Instead, the executive enforces the law as written by the legislature and interpreted by the judiciary. The executive can be the source of certain types of law, such as a decree or executive order. Executive bureaucracies are commonly the source of regulations.

In the Westminster political system, the principle of separation of powers is not as entrenched. Members of the executive, called ministers, are also members of the legislature, and hence play an important part in both the writing and enforcing of law.

In this context, the executive consists of a leader(s) of an office or multiple offices. Specifically, the top leadership roles of the executive branch may include:

head of state – often the supreme leader, the president or monarch, the chief public representative and living symbol of national unity.

head of government – often the de facto leader, prime minister, overseeing the administration of all affairs of state.

defence minister – overseeing the armed forces, determining military policy and managing external safety.

interior minister – overseeing the police forces, enforcing the law and managing internal safety.

foreign minister – overseeing the diplomatic service, determining foreign policy and managing foreign relations.

finance minister – overseeing the treasury, determining fiscal policy and managing national budget.

justice minister – overseeing criminal prosecutions, corrections, enforcement of court orders.In a presidential system, the leader of the executive is both the head of state and head of government. In a parliamentary system, a cabinet minister responsible to the legislature is the head of government, while the head of state is usually a largely ceremonial monarch or president.

Global justice movement

The global justice movement is a network of globalized social movements opposing what is often known as the “corporate globalization” and promoting equal distribution of economic resources.

Judicial interpretation

Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.

For example, the United States Supreme Court has decided such topics as the legality of slavery as in the Dred Scott decision, and desegregation as in the Brown v Board of Education decision, and abortion rights as in the Roe v Wade decision. As a result, how justices interpret the constitution, and the ways in which they approach this task has a political aspect. Terms describing types of judicial interpretation can be ambiguous; for example, the term judicial conservatism can vary in meaning depending on what is trying to be "conserved". One can look at judicial interpretation along a continuum from judicial restraint to judicial activism, with different viewpoints along the continuum.

Judicial reform

Judicial reform is the complete or partial political reform of a country's judiciary. Judicial reform is often done as a part of wider reform of the country's political system or a legal reform.Areas of the judicial reform often include; codification of law instead of common law, moving from an inquisitorial system to an adversarial system, establishing stronger judicial independence with judicial councils or changes to appointment procedure, establishing mandatory retirement age for judges or enhancing independence of prosecution.

Legal doctrine

A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows for it to be equally applied to like cases. When enough judges make use of the process, soon enough it becomes established as the de facto method of deciding like situations.

Legal moralism

Legal moralism is the theory of jurisprudence and the philosophy of law which holds that laws may be used to prohibit or require behavior based on society's collective judgment of whether it is moral. It is often given as an alternative to legal liberalism, which holds that laws may only be used to the extent that they promote liberty. The debate between moralism and liberalism attracted much attention following the publication by the UK Parliament of the Wolfenden Report in 1957, which recommended that homosexuality should be decriminalised on the basis that the function of the law "is not... in our view... to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour". Over the following years, H. L. A. Hart and Patrick Devlin, Baron Devlin contributed significantly to the body of literature.

Libertarian theories of law

Libertarian theories of law build upon classical liberal and individualist doctrines.

The defining characteristics of libertarian legal theory are its insistence that the amount of governmental intervention should be kept to a minimum and the primary functions of law should be enforcement of contracts and social order, though "social order" is often seen as a desirable side effect of a free market rather than a philosophical necessity.

Historically, the Austrian economist Friedrich Hayek is the most important libertarian legal theorist. Another important predecessor was Lysander Spooner, a 19th-century American individualist anarchist and lawyer. John Locke was also an influence on libertarian legal theory (see Two Treatises of Government).

Ideas range from anarcho-capitalism to a minimal state providing physical protection and enforcement of contracts. Some advocate regulation, including the existence of a police force, military, public land, and public infrastructure. Geolibertarians oppose absolute ownership of land on Georgist grounds.

Polycentric law

Polycentric law is a legal structure in which providers of legal systems compete or overlap in a given jurisdiction, as opposed to monopolistic statutory law according to which there is a sole provider of law for each jurisdiction. Devolution of this monopoly occurs by the principle of jurisprudence in which they rule according to higher law.

Rationality and Power

Rationality and Power: Democracy in Practice is a 1998 book by Bent Flyvbjerg, who focuses on "the application of critical theory to urban and community development". Flyvbjerg deploys a form of social science he developed in Making Social Science Matter (2001).

Statolatry

Statolatry, which combines idolatry with the state, first appeared in Giovanni Gentile's Doctrine of Fascism, published in 1931 under Mussolini's name, and was also mentioned in Gramsci's Prison Notebooks (1971) sometime between 1931-1932, while he was imprisoned by Mussolini. The same year, the encyclical Non abbiamo bisogno by Pope Pius XI criticized Fascist Italy as developing "a pagan worship of the state" which it called "statolatry".The term politiolatry was used to describe reason of state doctrine in the 17th century with similar intent.

Thoughts on Government

Thoughts on Government, or in full Thoughts on Government, Applicable to the Present State of the American Colonies, was written by John Adams during the spring of 1776 in response to a resolution of the North Carolina Provincial Congress which requested Adams' suggestions on the establishment of a new government and the drafting of a constitution. Adams says that "Politics is the Science of human Happiness -and the Felicity of Societies depends on the Constitutions of Government under which they live." Many of the ideas put forth in Adams' essay were adopted in December 1776 by the framers of North Carolina's first constitution.

The document is notable in that Adams sketches out the three branches of American government: the executive, judicial, and legislative branches, all with a system of checks and balances. Furthermore, in response to Common Sense by Thomas Paine, Adams rejects the idea of a single legislative body, fearing it may become tyrannical or self-serving (as in the case of the Netherlands at the time). Thus, Adams also conceived of the idea that two legislative bodies should serve as checks to the power of the other.

Unitary state

A unitary state is a state governed as a single power in which the central government is ultimately supreme. The central government may create (or abolish) administrative divisions (sub-national units). Such units exercise only the powers that the central government chooses to delegate. Although political power may be delegated through devolution to local governments by statute, the central government may abrogate the acts of devolved governments or curtail (or expand) their powers. A large majority of the world's states (165 of the 193 UN member states) have a unitary system of government.

Unitary states stand in contrast with federations, also known as federal states. In federations, the sub-national governments share powers with the central government as equal actors through a written constitution, to which the consent of both is required to make amendments. This means that the sub-national units have a right of existence and powers that cannot be unilaterally changed by the central government.

The United Kingdom of Great Britain and Northern Ireland is an example of a unitary state. Scotland, Wales and Northern Ireland have a degree of autonomous devolved power, but such power is delegated by the Parliament of the United Kingdom, which may enact laws unilaterally altering or abolishing devolution (England does not have any devolved power). Many unitary states have no areas possessing a degree of autonomy. In such countries, sub-national regions cannot decide their own laws. Examples are Romania, the Republic of Ireland and the Kingdom of Norway.

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