Rule of law and guarantees of

legality
Rule of law

⚫ The rule of law is the principle that governmental

authority is legitimately exercised only in accordance
with written, publicly disclosed laws adopted and
enforced in accordance with established procedure.
⚫ This maxim is used to describe certain
characteristics about the proper functioning of a
legal system and its relationship with political power
and individuals.
Rechtsstaat

⚫ Rechtsstaat is a concept in continental European legal thinking,

originally borrowed from German jurisprudence, which can be
translated as "legal state", "state of law", "state of justice", or "state
of rights".
⚫ It is a "constitutional state" in which the exercise of governmental
power is constrained by the law, and is often tied to the Anglo-
American concept of the rule of law.
⚫ In a Rechtsstaat, the power of the state is limited in order to
protect citizens from the arbitrary exercise of authority. In a
Rechtsstaat the citizens share legally based civil liberties and they
can use the courts. A country cannot be a liberal democracy
without first being a Rechtsstaat.
History – I.

⚫ 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."
History II.

⚫ 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 Ancient Roman statesman Cicero, "We are all
servants of the laws in order that we may be free."
Albert Dicey

⚫ British jurist A. V. Dicey popularized the phrase "rule

of law" in 1885. Dicey emphasized three aspects of
the rule of law:
– No one can be punished or made to suffer except for a
breach of law proved in an ordinary court.
– No one is above the law and everyone is equal before the
law regardless of social, economic, or political status.
– The rule of law includes the results of judicial decisions
determining the rights of private persons.
The principles of the rule of law

⚫ Independence and impartiality of the judiciary

⚫ Independence means that the judiciary is free of
external pressure, and that it is not controlled by the
other two branches of government, especially by the
executive branch.
⚫ Impartiality means that the judiciary is not interested
in the outcome of the case in favor of any one of the
participants.
Non-discrimination and equality
before the law

⚫ Non-discrimination means that the laws refrain from discriminating

against certain groups. Any discrimination under the law is prohibited
and all persons have guaranteed equal and effective protection
against discrimination on any ground.
⚫ Such grounds can be race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
⚫ Equality before the law means that each individual is subject to the
same laws, with no individual or group having special legal privileges.
All persons, regardless of race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other
status, are to be treated the same before the law.
Respect for (judicial) human rights

⚫ The judicial human rights are:

– (1) the right of access to justice,
– (2) the right to a legally competent judge,
– (3) the right to be heard,
– (4) inadmissibility of double jeopardy (ne bis in idem),
– (5) the legal principle that measures should not have retroactive
effect as well as the prohibition of analogy,
– (6) the right to an effective remedy for any arguable claim,
– (7) anyone accused of a crime is presumed innocent until proved
guilty,
– (8) the right to a fair trial
State is bound by law

⚫ The principle that the State is bound by the law

requires that the State acts on the basis of, and in
accordance with, the law.
⚫ This means that all decisions and acts of public officials
must be authorized by law and that all legal subjects,
especially State authorities and officials, should be
bound by the law when carrying out their official
functions.
⚫ So policy and decision making must respect the limits
and the guidance provided by the law.
Guarantees of legality I.

⚫ The principle of legality is the legal ideal that requires

all law to be clear, ascertainable and non-retrospective.
⚫ It requires decision makers to resolve disputes by
applying legal rules that have been declared
beforehand, and not to alter the legal situation
retrospectively by discretionary departures from
established law.
⚫ It is closely related to legal formalism and the rule of
law