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Rule of Law
Rule of Law
TABLE OF CONTENTS
Acknowledgement Introduction History Rule of Law in India World Justice Project Rule of Law in relation to Economics Categorisation of interpretations Golden Rule Mischief rule In conflict with natural law Conclusion
Rule of law
Introduction
Rule of law is a legal maxim that suggests that governmental decisions be made by applying known principles. The phrase can be traced back to 17th century and was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right. Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings ... everyone is for it but have contrasting convictions about what it is." At least two principal conceptions of the rule of law can be identified: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.
History
Antiquity
In Western philosophy, the Ancient Greeks initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law. Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law: It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws. According to the Roman statesman Cicero, "We are all servants of the laws in order that we may be free." During the Roman Republic, controversial
magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury. In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law. In contrast,the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.
Middle Ages
In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official could claim to be above the law, not even the caliph. However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law. In 1215, a similar development occurred in England: King John placed himself and England's future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta.
Modern times
An early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons:
Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government.... Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title is Latin for "the law is king" and reverses the traditional rex lex ("the king is the law"). John Locke also discussed this issue in his Second Treatise of Government (1690). The principle was also discussed by Montesquieu in The Spirit of the Laws (1748). The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755). In 1776, the notion that no one is above the law was popular during the founding of the United States, for example Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."
In India, the meaning of rule of law hasbeen much expanded. It is regarded as apart of the basic structure of theConstitution and, therefore, it cannot beabrogated or destroyed even by Parliament.It is also regarded as a part of natural justice.
the economic development in developing and transitional countries. To date, the term rule of law has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy.
Categorization of interpretations
Different people have different interpretations about exactly what "rule of law" means. According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings.Among modern legal theorists, most views on this subject fall into three general categories: the formal (or "thin") approach, the substantive (or "thick") approach, and the functional approach. The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law.This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights. The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights. The functional interpretation of the term "rule of law", consistent with the traditional English meaning, contrasts the "rule of law" with the "rule of man."According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of law".The rule of
law is thus somewhat at odds with flexibility, even when flexibility may be preferable. The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion."
GOLDEN RULE
This term refers to the maxim "do as you would be done by". For other uses, see Golden Rule (disambiguation).
The maxim of the "golden rule" is exemplified in many Christian stories, such as the Parable of the Good Samaritan, which are unadorned replications of the JewishTorah: "Love your neighbor as yourself: I am the LORD."(Leviticus 19:18 NJPS) The Golden Rule or ethic of reciprocity is a maxim,[ethical code, or morality that essentially states either of the following:
(Positive form): One should treat others as one would like others to treat oneself. (Negative/prohibitive form, also called The Silver Rule): One should not treat others in ways that one would not like to be treated.
This concept describes a "reciprocal" or "two-way" relationship between one's self and others that involves both sides equally and in a mutual fashion. This concept can be studied from the perspective of psychology, philosophy, sociology, religion, etc.: Psychologically it involves a person empathizing with others. Philosophically it involves a person perceiving their neighbor as also "an I" or "self." Sociologically, this principle is applicable between individuals, between groups, and between individuals and groups.
Conclusion
This project in my experience has been amazing . I cant describe it in words . The in depth learning of Rule of law was an extreme pleasure and I would like to continue my work on it and maybe also find some strategies to overcome its drawbacks . As for now this project has offered me a lot of knowledge about law and how the envronment impacts law. I would look upto more project like these for advancements and better understanding industries and enterprises. During this project I came to know how the law evolved ,their successes and failures.If I wouldnt have had this project I may not have learnt this.