Rules of Law and Legal System

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Some lawyers who maintain the contrast between the rule of law and the rule of law have a more ambitious agenda. They take seriously the age-old idea that we can be governed by laws and not by people. One wonders: how is this going to be done? After all, all laws are made by people and interpreted by people and enforced by people. He can no longer govern us alone, without human help, than a cannon can dominate us, without a hardware store to launch it, and a gunner to charge and fire it. Legal scholars who compare the rule of law to the rule of law believe they can do so by focusing on laws whose human origins are somehow diffuse or immemorial. We`re not necessarily talking about natural law here, but perhaps something like the common law or the common law – the law that isn`t so obviously a descendant product of powerful human legislators (Epstein 2011). The common law grows and develops on its own and does not need to be conceived as a means by which some identifiable persons rule over others. Undoubtedly, there is a lot of mythology in it. A more realistic view of the common law identifies it with the conscious and arbitrary rule of an entity that Bentham (1792) called “Judge & Co.” But it remains true that the human element in this type of system is diffuse, and at any time the law that arises is the result of the work of many people and not the deliberate product of a dominant majority that governs us from the legislative center of a state. The positive legal school of legal thought would recognize the command of the legislator as legitimate; Questions about the morality or immorality of the law would not be important. On the other hand, the natural law school of legal thought would refuse to recognize the legitimacy of laws that are not in conformity with natural, universal or divine law.

If a legislature issued an order that violated natural law, a citizen would have a moral right to demonstrate civil disobedience. For example, by refusing to give up her seat to a white person, Rosa Parks believed she was refusing to obey an unjust law. The rule of law does not depend on an American-style separation of powers. In a parliamentary system, for example, the powers of the executive and legislative branches are combined; Procedures such as no-confidence votes and regular elections are used to control which party controls parliament. The key point is that every form of government must have a system to ensure that no one in government has enough power to act above the law. Justice Wood`s observations underscore the need, first, for an open and transparent system of laws and, second, for laws to be applied in a predictable and consistent manner. Openness and transparency are essential. If people are unable to know and understand what the law is, they cannot be expected to obey it. At the same time, people deserve to know why a certain law was passed and why they are being asked to follow it. As a general rule, there are few generalizations that can be made between different constitutions.

First, constitutions seek to regulate the division of powers, functions and duties among various agencies and government officials, and to define the relationship between them and the public. Second, no constitution, no matter how good, can protect a political system from effective usurpation. Third, those in power in many countries are more or less completely ignorant of the constitution. Fourth, even when constitutions do, none is complete: each operates within a matrix of compromises, customary laws or jurisprudence. Fifth, most begin by identifying (at least on paper) the constituent authority (as “the people”) and often invoke the deity (i.e., Canada, Germany, Greece, Ireland, Pakistan, Switzerland). Sixth, as a rule, they separate the legislative, executive and judicial organs of the State. Seventh, they usually contain or incorporate a bill of rights. Eighth, they often provide a method of repealing laws and other unconstitutional instruments, including the Bill of Rights. Ninth, they approach the international scene only in general terms and in practice confer extensive powers on the (federal) executive.

Finally, they deal with the status of international law, either by giving it direct internal effect or by denying it. All these people can own property and hold it for their own property (house, clothing, etc.) or as a business or investment (office buildings, factories, stocks, savings accounts). Only socialist systems have attempted to prevent this second function of property by forbidding individuals to own “the means of production.” The property in question may be tangible and is often referred to as immovable and movable (or, at common law, immovable and personal). Ownership can also be intangible, such as debts, copyrights and patents. If owners have full legal capacity, they can generally manage their property as they wish, subject to public policy rules (e.g. zoning by-laws). They can manage their assets during their lifetime or their will, although many systems ensure that a portion of the deceased`s assets go to close relatives. The courts play an essential role in upholding the rule of law, particularly when they hear complaints from minority groups or persons 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.