Depart From the Rule of Essay
- Length: 10 pages
- Sources: 15
- Subject: Business - Law
- Type: Essay
- Paper: #15192799
Excerpt from Essay :
As Waldron (2009) emphasizes in an article entitled, The Concept of the Rule of law, the rule of law
... is invoked whenever we criticize governments that are trying to get their way by arbitrary and oppressive action or by short-circuiting the procedures laid down in a country's laws or constitution. Interfering with the courts, jailing someone without legal justification, detaining people without due process, manipulating the constitution for partisan advantage -- all these actions are seen as abuses of the Rule of Law.
In other words, the rule of law provides the normative structure that gives stability to the society. Therefore, deviations from the norms of the rule of law threaten the structure of a democratic society. Consequently, such deviations are only appropriate in the most exceptional of circumstances.
As the author of the above article states,
The Rule of Law is violated...when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens, or when officials act on the basis of their own discretion rather than rules laid down in advance.
This also relates to the classical defence of the rule of law. This refers to the liberal, egalitarian and rational tendencies in political philosophy. More specifically it refers to the trend in Western thought towards a rationalistic ethos of thought and action, which stresses a reasoned and rational rather than an emotional or passionate approach to the law and society. We see this in Plato's ideal republic which was "... A construction of reason...one of the major concerns of the Republic was the development of leadership that would not corrupt and would remain subservient to its rational law."
This is also linked in Western thought to egalitarianism and the balance of power and class. In other words, "...the rule of law is a necessary & #8230;condition for most forms of liberalism that have dominated political thought since the enlightenment."
In the light of this trend in thought in the Western world the importance of the rule of law becomes clear as well as the inappropriateness of any deviation from this rule of law.
However while there is in principle are no theoretically conceivable situation where the rule of law would be appropriate, it can be argued that there are situations that place the rule of law into question and even doubt. It must be remembered that the rule of allow does not refer to specific laws but rather to an ethos and underlying principle of legal equality and fairness in society in general. An abrogation of the rule of law in principle therefore means that, "Such a society will quickly relapse into a state of arbitrary tyranny."
The essence of the rule of law is to ensure fair and egalitarian legal treatment, yet there may be situations where the rule of law is open to questioning on certain grounds; for example, where the rule of law appears to contradict essential human rights or prohibit individual freedom unnecessarily.
An example from the human rights arena may serve to illustrate this point. While a central aspect and function of the rule of law is to enable the ordinary citizen to enforce their rights, yet in some countries this has not been a characteristic feature of the rule of law. A good example in this regards is South Africa. As de Vos (2009) states,
... In South Africa most people -- let alone poor people -- do not have the money needed to pay for lawyers that would enforce their rights and entitlements in court. A poor person who enters into a verbal contract with someone who fails to honour his or her word, will not be assisted by the law if the powerful contractee just ignores his or her obligations. Neither will such a person have much chance to challenge an unjust, unfair or unconstitutional decision by a state official to stop her pension, evict her from her shack or confiscate her goats -- simply because such a person will not be able to pay lawyers to represent him or her.
As referred to, there are some extreme situations when the rule of law may be deviated from. These include extreme events such as disasters and terrorist attacks; for example, the terrorist attacks of September, 2001, and Hurricane Katrina. These events "... imposed tremendous pressure on the rule of law and, in the case of Hurricane Katrina, the justice system literally collapsed."
However, it is asserted that even in times of disaster the rule of law must be preserved.
The issue of terrorism and the rule of law have raised some controversial issues. One of these is that "The tragic events in New York and Washington on 11 September 2001 may have made liberal democratic societies, such as Australia, realise the importance of protection through government as well as protection from government."
This has resulted in proposed legislation which allows for the holding of suspected terrorists for 48 hours without any legal justification. This is a deviation from the rule of law but it is considered necessary due to the radically changing political situation in the world. This refers to the point made above that the rule of law also has to flexible and adaptable to changing circumstances. The rationale from this deviation from the rule of law is as follows:
The protection of Australian lives from the very real threat of terrorism is now, possibly more than ever, considered a top priority. Protection from such a realistic threat is a higher priority than the protection of one person's freedom for 48 hours. Protection from terrorism is more important than the possibility of a person being held in custody for a short time without having breached the law.
Lord Bingham summarizes the kernel of the formalist view of the rule of law as follows: "….the rule of law does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy."
This suggests the reciprocal dynamic that the rule of law sets up between the individual citizens and the government and institutions of a country. As has been discussed, the rule of law is based on principles of egalitarianism, justice and legal accessibility.
There are very few instances where deviation from the rule of law can be deemed to be appropriate, as the rule of law is a fundamental set of principles that determines the predictability and order of most contemporary nations and states.
However, the rule of law can be interrogated and questioned if it does not live up to the ideals that are intrinsic to its principles. If the rule of law does not satisfy standards of human rights, for example, as is the case in South Africa, its validity can be questioned. In extreme circumstances such as major disasters and terrorism, there is a case for the deviation from the rule of law. However, these situations imply an adjustment or refurbishment of the rule of law and would not be a reason to dispense with the rule of law.
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