Historically, the most influential display of the rule of law has been offered by A.V. Dicey. Its wording included three ideas: However, most people who value the rule of law do not accept this approach. If a law is properly drafted (if it is clear, understandable and generally expressed) and is promulgated and promulgated prospectively, and if it is administered impartially and with due process, they will describe this as a perfectly appropriate exercise of the rule of law. In fact, this is what many scholars mean by the rule of law: people are governed by measures that are usually established in advance and also applied according to the conditions under which they were publicly proclaimed. The argument that it should be set aside because it does not sufficiently contrast with the domination of the people seems perverse. The rules themselves were part of the problem: «People and situations differ, and human affairs are characterized by an almost permanent state of instability» (Statesman 294b). They would only be used as a (distant) back and forth if one felt that one could not recognize or trust the appearance of expertise in political life. These concerns are reflected in the work of modern legal pragmatists (such as Posner 1995), who place much more reliance on judges` views on new situations than on the application of established rules or strained analogies with old precedents. A similar question arises with regard to the use of standards, which are more of a standard than a rule. (A rule is like a digital speed limit, while a standard is like a standard that requires people to drive at a «reasonable» speed.) Legal systems use both types of norms (Sunstein, 1994); They use standards for cases where the appropriate decision may vary depending on environmental conditions, and it seems preferable to trust the judgment of those in a particular situation rather than set it in advance.
There is an element of respect for the individual`s ability to judge that is conveyed by the use of a standard. At the same time, standards allow for less legal certainty, especially when it is difficult for the person trying to comply with the standard to predict how his or her judgment will be judged by an official or court. Hayek suggests that it is reasonable to use the rule of law to assess how a society responds to emergencies? It is often assumed that emergencies require more persuasive and less procedurally burdensome forms of government action than are normally required. In fact, a number of possibilities have been discussed (Scheuerman 2006). One is to insist, in the name of the rule of law, that existing constitutional guarantees remain in force; After all, that`s what they`re designed for, and these situations are where they`re needed most. On the other hand, in emergencies, there could be a general spirit of flexibility and circumstantial sensitivity in government action, which is also encouraged in normal times. In this second option, the rule of law does not present itself as a major obstacle to the flexibility of the State`s action in the face of dangers. As a third option, one could try to preserve something like the rule of law by establishing in advance specific legal rules for emergency situations — rules that, for example, suspend general guarantees of liberty or give staff members a wide margin of appreciation to take actions that would normally be governed by general legal norms. (Machiavelli proposed a version in his Discourses (1517) and praised the institution of the dictator in the Roman Republic.) This option has the advantage of predictability; But its disadvantage is that it advocates a kind of light of the rule of law that can eventually infect or replace the concept of rule of law that is normally supposed to be applicable. Aristotle`s work on the rule of law is still influential. Although he framed the question of whether it was better to be governed by the best man or by the best laws, he approached this question realistically, noting that it depended not only on the type of law considered, but also on the type of regime that enacted and administered the law in question (Politics 1282b). There is concern about the mentality fostered by the overemphasis on the rule of law.
In its most extreme form, the rule of law can lead to the shutdown of the capacity for independent moral thought in civil servants (judges, for example: see cover 1975) or in ordinary members of a community, making them anxious and suspicious of their own individual judgments or those of others in the face of uncertainty (cf. Henderson 1990). Sometimes it is important, in the name of clear and courageous moral judgment, not to exaggerate the importance of something required by law. Other concerns about the rule of law mentality include legalism and the tendency to over-formalize or bureaucratize healthier relationships in more informal terms. It is not just a question of legalizing the personal sphere; It also means, for example, understanding the damage that can be done to relationships between public servants (such as social workers) and vulnerable clients by replacing rigid rules to replace relatively informal professional standards (Simon 1983). How, then, should wealth and income be distributed in a just society if they are not fairly or distorted towards the rich? Again, using their reason and logic, Rawls argued that imaginary parties would adopt what philosophers call the minimum-maximum (or «maximin») rule. According to this rule, the best choice is the highest minimum. Although many jurists follow Raz 1977 and believe that the rule of law is a purely formal/procedural ideal, others believe in adding a more substantial dimension. They do not believe that it is possible to clearly separate our political ideals, as Raz seems to assume.
At least the formal/procedural aspects generate some momentum in a substantive direction. It is often said that generality – proceeding according to a rule – contains the seed of justice (Hart 1961: chap. 8). And stability, publicity, clarity and foresight indicate a fairly fundamental link between the rule of law and the conditions of freedom. However, we must be careful to distinguish between the supposedly substantive requirements of the rule of law and the specification of the deeper values that underlie and motivate the ideal also in its formal and procedural requirements. The extent to which society is bound by the law is bound by processes that secure property rights under legal rules that are applied predictably and are not subject to the whims of certain individuals. Commitment to such processes is the essence of the rule of law. Cass (2004:131) This emphasis on the value of complexity—how complicated laws, particularly property laws, provide hedges under which people can find shelter from the intrusive demands of power—has continued to fascinate modern rule of law theorists (e.g., Thompson 1975:258-69). Rawls was a political liberal, which is why he stressed the need for a neutral state between different perspectives of values. He calls his view «justice as equity.» He argues that if all members of society came together to develop collective principles of self-agitation, the result would be that rules would only be influenced by certain sections of the population.
This is because a variety of people exist in society; They may be rich, poor, educated, uneducated, etc. People of this diversity inevitably have differences in their opinions and interests. These differences would ultimately lead to a situation where justice would be compromised to satisfy the interests of influential sections of the people. At the end of the day, justice is not served. Thus, the theory of justice proposed by Rawls advocates a rule-making system that ignores the social, economic, physical, or mental factors that distinguish people in society. 24 The legal system and legal norms dispense justice not only because they satisfy certain purely procedural requirements of Rawls` legal opinion (e.g. These considerations, he said, are best understood as independent dimensions of evaluation. Tom Bingham, in his book on the rule of law, said in response to Raz: In modern debate we also hear echoes of the doctrine contained in The Spirit of the Laws (1748: Bk.