The rule of law is a permanent system of laws, institutions, standards, and community engagement that achieves the following objectives: U.S. Army doctrine and the U.S. Government Interagency Agreement (USG) could consider the rule of law as a principle of governance. [60] The principle that the rule of law requires an independent judiciary was described by Justice O`Connor as the “foundation” of the rule of law. [52] Alexander Hamilton, writing in The Federalist in 1776 in support of the adoption of the United States Constitution, described the importance of judicial independence as follows: “No man can be sure that tomorrow he will not fall victim to a spirit of injustice by which he can be a winner today.” [53] If governance is to be governed by law and not by the people, this requires impartial and balanced application of the law by an independent judiciary. To what extent should the rule of law have the role of eliminating or reducing discretion in how a society is governed? Some jurists, such as Dicey (1885) and, to a lesser extent, Hayek (1944), insist that formal discretion is inherently contrary to the rule of law. Others, such as Davis (1969), condemn this position as extravagant, arguing that discretion is indelible in the modern administrative state. The rule of law is not about removing discretionary powers, but about ensuring that they are properly drafted and approved, and that the application of judicial rules and procedures is respected in cases where freedom and well-being are most at stake. All these principles are unlikely to have a strong presence in a society. This does not lead to the conclusion that the rule of law does not exist in such a society. The apartheid government, its officers and agents were responsible in accordance with the law; The laws were clear; published and stable and have been confirmed by law enforcement officials and judges. What is missing is the material component of the rule of law. The process by which laws were made was not fair (only whites, a minority of the population, had the right to vote).
And the laws themselves were not fair. They have institutionalized discrimination, given the executive broad discretionary powers, and failed to protect fundamental rights. Without substantive content, there would be no response to the criticism sometimes voiced that the rule of law is “an empty container into which any law could be poured.” (World Justice Project 2011: 9) In Thailand, a kingdom that has had a constitution since the first attempt to overthrow the system of absolute monarchy in 1932, the rule of law has been a principle rather than a real practice. [ref. needed] Old prejudices and political prejudices were present in all three branches of government with each of their foundations, and the judiciary was formally treated according to the law, but in fact more closely associated with the royalist principles that are still advocated in the 21st century. [ref. needed] In November 2013, Thailand faced new threats to the rule of law when the executive branch rejected a Supreme Court ruling on the selection of senators. [ref.
needed] The old concept of the rule of law can be distinguished from the rule of law, according to political scientist Li Shuguang: “Difference. is that the law takes precedence over the rule of law and can serve as a check against abuses of power. In the context of the rule of law, the law is merely a tool for a government that legally suppresses. [41] John Locke, in the second of his Two Treatises of Government (1689), emphasized the importance of governance through “permanent laws established, promulgated, and known to the people.” He opposed this to domination by “temporary 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 established laws from arbitrary decrees, it was not the oppressive feeling of “arbitrariness” that he had in mind. In this context, something is arbitrary because it is temporary: there is no notice of that; The sovereign simply discovers it while he is participating. (Lord Mansfield in Vallejo v. Wheeler (1774) 1 Cowp. 143, p.
153 (cited by Bingham 2010: 38)) Courts play an essential role in upholding the rule of law, particularly when hearing complaints from minority groups or individuals who may hold minority views. Equality before the law is so integral to the U.S. system of government that when a majority, intentionally or unintentionally, violates the rights of a minority, the Court sees fit to hear both sides of the controversy in court.
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