Despite these fundamental characteristics, however, there has never been a generally accepted or even systematic formulation of the rule of law (but not due to a lack of attempts by lawyers and political philosophers). The idea that the law should contribute to beneficial ways of channelling and restricting the exercise of public power can be interpreted in different ways; These differences are particularly evident over time and between different communities. A concrete example of the importance of the rule of law in building democracy is the fact that the rule of law is a fundamental principle adopted in most modern democracies. Constitutions contain the fundamental and mostly supreme law of the state, and the rule of law dictates the application of these principles to all other laws. Constitutions also preserve fundamental principles and values by weighing down the process of change. Some constitutions ensure the permanence of certain principles and values by prohibiting amendments. The judiciary, which applies the law to individual cases, acts as the guardian of the rule of law. Therefore, an independent and properly functioning judiciary is a prerequisite for the rule of law, which requires a fair legal system, the right to a fair trial, and access to justice.5 Formal and substantive concepts are certainly interdependent, and some scholars oppose a thin/thick dichotomy, suggesting that in situations of social and political change, the formal and substantive characteristics of the rule of law can be “thinner” or “thicker”. In general, however, the emphasis on “thin” definitions focuses on the procedures by which rules are formulated and enforced, while “thick” definitions aim to protect rights and integrate them into a broader discourse on human development. The four universal principles are further developed in the following factors in the annual Rule of Law Index® of the World Justice Project (WJP), the world`s leading source of original and independent rule of law data. The latest edition of the index draws on surveys of more than 138,000 households and 4,200 lawyers and experts to measure how the rule of law is experienced and perceived around the world.
Our data provides up-to-date and reliable information to policymakers, civil society organizations, academics, citizens, businesses and lawyers, among others. The index`s results have been cited by heads of state, chief justices, business leaders and officials, including media coverage in more than 190 countries around the world. Ideas about the rule of law have existed since at least the 4th century BC. At the heart of political and legal thought, when Aristotle distinguished the “rule of law” from “that of an individual”. In the 18th century, the French political philosopher Montesquieu developed a doctrine based on the rule of law that opposed the legitimate authority of monarchs to the whims of despots. Since then, it has profoundly influenced the liberal thinking of the West. A library of WJP-supported and locally managed programs that advance the rule of law around the world. During the negotiations on the General Assembly Declaration on the Rule of Law, some Member States stressed that the international community should, upon request, assist and support countries that have overcome conflict or are in the process of democratization, as they help to address the legacy of human rights violations during their transition and to move towards democratic governance and the rule of law. particular challenges. The concept was finally reformulated in paragraph 18, referring only to the specific challenges of transitions, without mentioning democratization. However, this debate has shown how important it is to draw on the experience of the past 30 years, especially in the global South, of multiple and often simultaneous transitions – from war to peace, from command to market economies, from autocratic systems to democratic systems – in order to support national democratisation processes. A common feature of democracy and the rule of law is that a purely institutional approach says nothing about the actual results of processes and procedures, even if they are formally correct.
When it comes to the relationship between the rule of law and democracy, a fundamental distinction must be made between the “rule of law”, in which the law is an instrument of government and government is above the law, and the “rule of law”, which implies that everyone in society is bound by the law, including the government. Essentially, the constitutional limits of power, an essential feature of democracy, require respect for the rule of law. Over the years, the United Nations has promoted the rule of law at the international level by consolidating and developing an international framework of norms and standards, establishing international and hybrid tribunals and extrajudicial mechanisms. It has refined its framework for engagement in the rule of law at the national level by providing support for the drafting of the constitution; the national legal framework; justice, governance, security and human rights institutions; transitional justice; and strengthening civil society.4 The Secretary-General`s 2008 Guidance on the United Nations approach to rule of law assistance contained general principles and a framework to guide the United Nations rule of law at the national level. In addition, its 2009 guideline on United Nations support to constitutional education processes outlined the components of constitutional processes and recognized that these processes are a central aspect of democratic transitions. While it is not only seen as an instrument of government, but is generally linked to the whole of society, including government, the rule of law is fundamental to the promotion of democracy. Strengthening the rule of law should not only be addressed with a focus on the application of standards and procedures. It is also necessary to emphasize its fundamental role in protecting rights and promoting inclusivity, thus shaping the protection of rights in the broader discourse on human development. For such reasons, it is preferable to consider the rule of law not as a model of institutional design, but as a value or group of values that could influence such a conception and can therefore be pursued in various ways.
Nevertheless, some fairly simple and generalizable institutional ideas stem from the idea that those who judge the legitimacy of the exercise of power should not be the same as those who exercise it. For example, a typical rule of law will institutionalize certain means of protecting legal officials from political or other interference that threatens their independence. As a result, the institutional separation of the judiciary from other branches of government is generally regarded as an important feature of the rule of law. Other measures to ensure equitable access to legal institutions may also be important for the rule of law. In addition, it is widely accepted that a binding written constitution supports the rule of law and has been adopted by most states around the world. 4 “Strengthening and coordinating United Nations activities in the field of the rule of law” (A/66/133), 8 August 2011. The rule of law, mechanism, process, institution, practice or norm that supports the equality of all citizens before the law, ensures a non-arbitrary form of government and, more generally, prevents the arbitrary use of power. Arbitrariness is typical of various forms of despotism, absolutism, authoritarianism and totalitarianism. Despotic governments even include highly institutionalized forms of government in which the entity at the top of the power structure (such as a king, junta, or party committee) is able to act without the constraints of the law if it so desires. .