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Elsewhere in L`Esprit des lois, Montesquieu develops a theory of the value of legalism. Noting that despotic governments tend to have very simple laws that they apply with little respect for procedural delicacy, Montesquieu argued that legal and procedural complexity tends to be linked to respect for human dignity. He combined this kind of respect with a monarchy that rules by law, as opposed to despotism: such procedural principles are arguably more important in the common man`s idea of the rule of law than the formal criteria mentioned in the previous section. When people feared that the US detention facility at Guantanamo Bay from 2003 to today was a “black hole” in terms of legality, it was precisely the absence of these procedural rights that worried them. What the detainees demanded in the name of the rule of law was the opportunity to appear in court, to confront and respond to the evidence against them (as it was), and to be represented so that their own version of the story could be explained. Undoubtedly, the integrity of that procedure depends, in part, on the formal characteristics of the rules governing their detention, the application of which, in their case, could be called into question at the hearings they request. It is difficult to argue at a hearing when detention laws are kept secret or are vague or constantly evolving. Nevertheless, we are missing a very important dimension of the ideal of the rule of law if we do not also focus on the procedural requirements themselves, which give this purchase, so to speak, to the formal aspect of the rule of law. This emphasis on the value of complexity—the ways in which complicated laws, particularly property laws, provide protections under which people can find shelter from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law (e.g., Thompson 1975: 258-69). INPROL provides an online forum for the exchange of information on best practices. Members can ask questions and expect their counterparts around the world to respond to their rule of law experience.

BDSM bondage My action can hardly be considered subject to the will of another person if I apply his rules for my own purposes, how I could use my knowledge of a natural law, and if that person is not informed of my existence or the particular circumstances in which the rules will apply to me, or the effects, that they will have on my plans, knows. (Hayek 1960:152) The rule of law comprises a set of principles of a formal and procedural nature that deal with how a community is governed. Formal principles concern the generality, clarity, publicity, stability and foresight of the norms that govern a society. The principles of procedure concern the processes by which these standards are administered and the institutions – such as the courts and an independent judiciary that requires their administration. To some extent, the rule of law also encompasses certain material ideals, such as the presumption of freedom and respect for private property rights. However, these are much more controversial (see section 1 below). And indeed, as we shall see, there is much controversy about what the rule of law requires. As we saw in Hayek`s discussion (1973), the other side of the coin is the denigration of legislation, precisely because its adoption seems obvious and undeniable to represent the rule of powerful officials.

Legislation is a matter of will. The legislative process produces laws simply because a group of people in an assembly decides that a particular law should be created. And this is done by the very men – powerful politicians – in whose power the rule of law is supposed to be an alternative. The norms of constitutional economy can be used during the annual budget process, and if this budgeting is transparent, the rule of law can benefit. The availability of an effective judicial system that can be used by civil society in situations of inequitable public spending and seizure of funds previously approved by the executive branch is a key element in the success of rule of law efforts. [88] A principle of governance in which all persons, institutions, and bodies, public and private, including the state itself, are responsible for laws that are publicly enacted, equally enforced, and independently decided, and that conform to international human rights standards. It also requires measures to ensure respect for the principles of the rule of law, equality before the law, accountability before the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. Most legal theorists believe that the rule of law has purely formal characteristics.

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