Table of Contents
Law can be described as a system of socially, politically and legally recognized standards and rule of behavior. These standards are rooted in the belief that the human being does not exist for the benefit of the state but that the state exists for the benefit of the human being. The organization of a society as a state, in whatever form, would seem to enable the rulers to use their preponderant power entirely for their own interests. People in all times have felt that this is not what the state is for. In the course of history, various types of societies and various cultures have known norms aimed at checking such arbitrary exercise of state power. So it was by no means the idea of rules of law which first expressed the belief that the state should serve the interests of the subjects. The special contribution of the rules of law idea consisted in the fact that it expressed this belief in a new formula: not primarily in the form of obligations of the rulers but in the form of laws of the ruled. Thesis Law limits individual liberty as it stipulates boundaries and measures of human behavior and individual action for citizens of the state or a global community.
In order to describe the nature of law, it is important to mention that the organization of a society as a state implies that the authorities dispose of power to enforce the rules governing that society. It might seem logical that the relationship between the citizens and the authorities would be characterized entirely by obligations on the side of the former and laws on the side of the latter. As far as the rules thus enforced would also confer laws upon citizens, these would only be laws vis-à-vis other citizens, not vis-à-vis the authorities. And as far as the authorities themselves might have obligations, these would only be obligations to higher authorities or to the Deity, not to the citizens. In this way a complete subordination of the individual to the state would appear as a logical consequence of the state system. Such a consequence, still, would be at complete variance with the belief that the function of the state is to serve the interests of the people. In the face of this fundamental contradiction, the idea of rules of law sounded like a liberating formula, a revolutionary rallying-cry (Stoner, 1992). This idea proclaimed that the human being has, of his own, an original right to what is indispensable for a worthy existence and that, on the basis of this original right, he may make claims toward the authorities. In the field of thinking about man, society and the state, it was a kind of revolution thus to put the laws of the human being first and foremost, because it meant a radical reversal of the relationship between the citizen and the authorities resulting from the preponderant power of the latter. One might also say that the basic asymmetry of power had turned the relationship upside-down, and that the rules of law idea restored it to its correct position (Kramer, 2005).
There is a second aspect in which the idea of laws and legal rules differs from other efforts to create standards controlling the exercise of public power. The rules of law idea is based on the principle of equality of all human beings. This too makes it a revolutionary idea. By the same token it is inevitably a controversial idea. It necessarily evokes opposition on the part of those whose privileges are being threatened, but at the same time it may expect support on the part of the underprivileged and the oppressed. Since rules of law are based on the principle of equality of all human beings, it would seem natural to claim universal validity for these laws. On the other hand, it stands to reason that, by being based on this principle, rules of law maximize the possibility of achieving broad agreement. Precisely this insoluble link with the principle of equality may explain why the idea of rules of law found so much adherence outside the West. Whereas the primary function of rules of law is to provide standards for the relationship between individuals and the state (the "vertical" significance of rules of law), they necessarily also entail standards for the relations among the individuals themselves (the "horizontal" significance of rules of law). Sometimes this is even the principal significance of particular rules of law and legal standard accepted by the state (Dahl, 2002).
One aspect of this significance deserves special attention. The social function of laws and legal rules is also to give people in a minority position some protection against majorities. Initially, rules of law were of course conceived primarily as a defense against the arbitrary exercise of public power. Therefore the idea of rules of law is closely linked to the idea of democracy. It does not only mean that the government must promote and respect the laws and freedoms of the citizens, but also that the citizens must be able to participate in determining government policy. In other words, the state must not only exist for the people but it must also be a state of the people. Accordingly, political liberties occupy an essential place in the domain of rules of law. This does not imply, however, that the majority should be free to apply the power of the state in whatever way it chooses. Rules of law also serve as a defense against the arbitrary exercise of democratic state power (Kramer, 2005). This is obvious as far as rules of law include specific minority laws, such as the right of persons belonging to linguistics or religious minorities to use their own language or to profess and practice their own religion. But the function of rules of law as a protection for people in minority positions reaches far beyond this. For example, when rules of law are given legal status by being codified in statutes or treaties, such legal instruments often specify explicitly in a limitative fashion on what grounds the exercise of such laws may be restricted. This implies that the majority is not free to introduce restrictions through legislation that are not based on the specified grounds. The general characterization of the rules of law idea set out above does not answer the question as to what specific laws are covered by that idea. However, it is not possible to give a single answer to this question which would apply at all times and in all places.Want an expert to write a paper for you Talk to an operator now
To begin with, views may differ as to what constitutes an existence worthy of a human being. Second, views may differ as to what is indispensable for such an existence. Moreover, social conditions may vary considerably according to the level of development which a society has reached and the way in which it is organized as a political system. For instance, the new phenomenon of electronic storage and transmission of personal data creates entirely novel problems in the field of the protection of privacy. Consequently, specific rules of law may be shaped in divergent ways on the basis of different social and technological circumstances and of different moral and cultural standards (Dahl, 2002). People should recognize in particular that rules of law represent a dynamic concept; they have had a long genesis and are still developing even now. In the light of the divergent ways in which rules of law may be given concrete shape, it is no less than a miracle that a high degree of international agreement has been achieved over the past forty years on specific standards encompassing all kinds of applications of the rules of law idea. This is an achievement of historical importance, even though many of these standards are continuously violated in many parts of the world. Neither the theoretical possibility of conceiving specific rules of law in divergent ways nor the practical experience of comprehensive international agreement on specific rules of law standards should lead us to the misconception that the rules of law idea is a neutral concept. It is a broad and flexible concept, but it is by no means neutral. It has a definite substantive content which, for instance, is incompatible with all authoritarian and discriminatory ideologies (Kramer, 2005).
Individual liberty is impossible because rules of law may entail certain obligations of fellow human beings. In both cases, this translation of laws into obligations does not affect the basic premise of the rules of law idea, namely that every human being is entitled to expect a certain behavior on the part of the authorities, and also to some extent on the part of his fellow human beings, with a view to safeguarding the indispensable conditions for a life worthy of a human being. These obligations may relate either to refraining from action (for example noninterference in the practice of religion) or to positive action (for example providing for adequate education (Bell, 2006)). As the idea of rules of law first arose from the need for protection of the individual against arbitrary action on the part of the state, the first laws to be put forward were in particular those which entail an obligation for the authorities to refrain from action. Rules of law of this kind have often been formulated as freedoms (for instance freedom of religion, freedom of the press) and for this reason they are also known as fundamental freedoms or liberties. They make up the main body of the so called "first generation" of rules of law which aims to guarantee the individual an area of personal freedom. Later, a new category was recognized, the so called "second generation" of rules of law, which call for action on the part of the authorities to create certain preconditions for human development such as education, employment, health care and social security. However, the distinction between the first and the second generation of rules of law does not simply coincide with the distinction between laws entailing negative obligations and laws entailing positive obligations (Bastiat, 1998). Several laws of the first generation also call for action on the part of the authorities, for instance the right of anyone who is arrested to be promptly informed of the reasons for his arrest. The basic difference between the classic civil and political laws which constitute the first generation of rules of law, and the economic, social and cultural laws which form the second generation, lies in another field. The classic laws can be invoked directly against the authorities and the obligations ensuing from these laws lend themselves to immediate application. On the other hand, the second-generation laws do not grant such direct entitlements to the citizens. They oblige the authorities to take general measures for the promotion of the interests concerned (employment, education, etc.), and the full realization of these laws may take a considerable time even if the authorities are faithfully discharging the obligations ensuing from these laws. The connection between laws and corresponding obligations is still weaker in the case of the standards which are put forward as rules of law of the so called "third generation" (sometimes named "solidarity laws"), such as the right to peace, the right to development, and the right to environment. Every right implies obligations on the part of others who have the duty to respect or fulfill that right (Barry et al 2001). Consequently, no laws can exist without corresponding obligations. On the other hand, many obligations exist without corresponding laws. Since the standards embodied in the second and the third generation of rules of law do not confer direct entitlements upon the supposed holders of these laws, the question may be asked whether it is proper to use the term "laws" here at all.
Laws represent primarily legal standards. Even if the term "laws" for the purpose of legal standards, would be used exclusively in the narrow sense of direct entitlements, this would not necessarily stand in the way of using the same term in a broader sense in extralegal contexts. It is obvious that in putting forward political demands, it is quite normal to employ the word "laws" with a more general meaning. For instance, legal rules protecting the interests of children or the mentally ill are often presented as concerning the "laws" of such persons even if the latter cannot personally claim the observance of these laws (Barry et al 2001). A recent example is the draft Convention on the Laws of the Child now under preparation in the United Nations: most of the rules contained in this draft cannot be invoked directly by the child or his representative (Bell, 2006). Another recent illustration is the Netherlands Constitution of 1983: it opens with a document entitled "Basic Laws," but this document contains not only rules which can be invoked directly by the citizens but also rules which cannot be so invoked. It is customary, for instance, that groups which press for the enactment of certain measures plead that these measures are to their interest, whereas they seldom argue that these measures are to their advantage. Whenever political demands are presented as based on interests, the use of this term seems to imply that those demands do not spring from mere selfishness or caprice, but from needs which deserve to be taken into account (Bastiat, 1998).
Rules of law are interests which require special protection by society because they represent indispensable conditions for an existence worthy of a human being. The general notion of laws does not impede society from curtailing or even abolishing particular laws with a view to the promotion of overriding interests, often designated as belonging to "the general interest" or "the common good" (Bell, 2006). However, when interests are presented as "rules of law," the use of this terminology implies that they cannot be simply discarded for the sake of overriding interests. Rules of law are meant to be of a higher rank than laws not so named, and the purpose of this higher rank is to ensure that the social system serves those basic human interests which are indispensable for a life of human dignity and self-respect (Bastiat, 1998).
Some rules of law can only be exercised collectively, for example the right of association and the right of assembly. Nevertheless it remains a right of the individual to participate in an association or an assembly. The collective aspect is even more evident when rules of law are specifically linked to membership of certain groups, such as the right of members of linguistic and religious minorities to preserve their own language or religion. Although the preservation of a language or a religion is dependent on interaction between individuals, we can still say that it is a right of every individual member of such minorities to use his own language or to profess and practice his own religion. Economic, social and cultural laws oblige the authorities to take general measures which affect great numbers of the subjects of such laws collectively. These rules of law of the "second generation" do not confer any direct entitlement which can be upheld by individuals against the authorities. They may only give rise to claims which can be asserted collectively through political means. Yet it would not be correct to say that such laws are held by collectivities. It still remains the individual who has a right to employment, a right to education, etc. If a human being forms part of a people which is prevented from freely determining its own political status, an indispensable condition for a life of human dignity is not fulfilled. Consequently, the right to self-determination can be considered a human right, although it cannot be exercised by an individual but only by a people (Bell, 2006).
Laws limit individual liberty and do not permit freedom of actions and behavior patterns. The right to self-determination resembles the rules of law because it can be upheld against the authorities of extraneous powers, who have a duty to refrain from interfering with the exercise of that right. The recognition of the right of peoples to liberty as a "human right" has been accepted by the overwhelming majority of the members of the United Nations. This means that the present-day use of the term "human”. This is not saying that there would be no limits to the possibility of presenting laws of collective entities as rules of law. As a matter of fact, the use of laws should always be consistent with the essential characteristics of the social relations and strict state powers. The principal function of this idea is to provide standards for the exercise of public power with a view to safeguarding the indispensable conditions for an existence worthy of a human being. It would be inconsistent to regard states as the subjects of rules of law. For the basic function of rules of law is and remains to strengthen the position of human beings against the backdrop of the fundamental inequality of power and authority between the individuals and the state; the function of rules of law can never be to reinforce the position of the state itself.