Rule of Law and Separation of Powers

The rule of law is a legal maxim that provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. The rule of law stands in contrast to the idea that the leader is above the law, a feature of Roman law, Nazi law, and certain other legal systems. At least two principal conceptions of the rule of law can be identified: a formalist or “thin” and a substantive or “thick” definition of the rule of law.

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Formalist definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from the rule of law. Rule of law has at least three meanings. First, rule of law is a regulator of government power. Second, rule of law means equality before law. Third, rule of law means procedural and formal justice.

We will take up these meanings of rule of law one by one. First, as a power regulator, rule of law has two functions: it limits government arbitrariness and power abuse, and it makes the government more rational and its policies more intelligent. In contrast, a key aspect of rule of law is “limitation;” i. e. , rule of law puts limits on the discretionary power of the government, including the power to changes laws. Second, if the government is to be restricted in its exercise of discretion, the government has to follow legal procedures that are pre-fixed and pre-announced.

For example, in constitutional and criminal law, there is a prohibition on “ex post facto” laws, that is, no one should be punished for a crime not previously defined in law. In other words, the government cannot simply define a new crime and apply the new definition retrospectively. Rule of law as a constraint on government power is well recognized, but its cognitive value in enhancing government’s rationality is often less understood. Rule of law not only limits the arbitrariness of the government, it also makes the government more intelligent and articulate in its decision making.

For one example, as Professor Stephen Holmes writes, only a constitution that limits the capacity of political decision makers to silence their sharpest critics can enhance the intelligence and legitimacy of decisions made. For another example, the key reason why liberal democrats do not believe in the pure will theory of legality is that, without rule of law as a limit, popular will can easily be corrupted by passions, emotions and short-term irrationalities. As such, liberal democrats demand rule of law because it helps us to behave according to our long-term interest and reason.

The second meaning of rule of law, according to Dicey, is equality before law. Not only that, no man is above the law, but that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. Though a soldier or a clergyman incurs from his position legal liabilities from which other men are exempt, he does not (speaking generally) escape thereby from the duties of an ordinary citizen. To Dicey, even in 1915 this principle of rule of law was not universally true among the liberal democratic countries of Europe.

In England the idea of legal equality had been “pushed to its utmost limit” by 1915, but in France the officials were “to some extent exempted from the ordinary law of the land, protected from the jurisdiction of the ordinary tribunals, and subject in certain respects only to official law administered by official bodies” (Dicey, 1982, p. 115). By now, however, equality before the law is a universally recognized principle in all liberal democratic countries, although different countries might, at the margins, have different interpretations of what that equality entails. The third meaning of rule of law is formal or procedural justice.

More specifically, formal or procedural justice consists of several principles. First, the legal system must have a complete set of decisional and procedural rules that are fair. Second, the fair rules of decision and procedure must also be pre-fixed and pre-announced. Third, these decisional and procedural rules must be transparently applied. Fourth, these decisional and procedural rules must be consistently applied. When these four conditions are satisfied, western judges and lawyers will say that they have achieved a certain kind of justice, which is called formal or procedural justice.

Note that this notion of justice is more concerned with process and procedure than with the end result. One example will help illustrate the concept of procedural or formal justice in contrast to substantive justice. If, in truth, a person has killed another person, substantive justice requires that the killer be punished according to law. However, if the killer is illegally tortured by the police to confess to his crime and, as a result of the confession, the police find conclusive evidence (i. e. , evidence proving guilt beyond reasonable doubt), such as the weapon, the body of the victim, etc. for the court to convict the killer (which results in substantive justice), there is no procedural justice because the process of finding guilt has violated the basic rights of the killer who, before the conviction, is a citizen entitled to the full protection of the Bill of Rights. In this case, based on the well-established law of criminal procedure, an American judge will not allow the record of confession (obtained through torture) and anything found as a direct result of the confession (such as the weapon and the body) to go into the court as evidence.

As such, the jury will never see these items as evidence, and if the prosecutors have no other good evidence, the killer is likely to be acquitted, even though substantive justice requires that the killer be punished (because, for example, the weapon and the body might prove the guilt beyond reasonable doubt due to the fact that the killer knows where the weapon and the body are, and the weapon contains the killer?? s fingerprints. ) In this way, in the United States, procedural justice triumphs over substantive justice in this particular case.

In the end, the American judge will claim that justice is done simply because the pre-determined procedural rule (e. g. , illegally obtained evidence is not admitted in court) is consistently and transparently applied. More specifically, formal or procedural justice has at least three values. First, without fair and just procedure, there is no guarantee that the end result will be just (that is, substantive justice cannot be guaranteed). As such, procedural justice is seen as a necessary condition for substantive justice.

This is why the western legal tradition places a much higher value on formal or procedural justice than its East Asian counterpart, which puts more emphasis on substantive justice. Second, formal or procedural justice is a condition for constraining government arbitrariness and protecting individual rights. When the government is required to follow pre-fixed, transparent and fair procedures before it can deprive a person’s life, liberty or property, the danger of government arbitrariness is substantially reduced and the prospect for wrongful deprivations of individual rights is also significantly diminished.

Third, as Max Weber points out, procedural justice results in consistency, predictability and calculability that are desirable aspects of economic and social life. This second value of procedural justice is independent of any value we place on substantive justice and strengthens the argument for the western tradition of emphasizing procedural justice. The separation of powers is a constitutional principle to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in any one body.

It ensures a diffusion rather than a concentration of power within the state. The state is divided into branches, each with separate and independent powers and areas of responsibility so that no one branch has more power other than the other branches. The normal of divisions branches is into an executive, a legislature, and a judiciary. Executive branch is a part of the government that has sole authority and responsibility for the daily administration and the state bureaucracy. The role of the executive is to enforce the law as written by the legislature and interpreted by the judicial system.

Legislature branch is a kind of deliberative assembly with the power to pass, amend and repeal laws. The law created by legislature is called legislation or statutory law. In parliamentary systems of government ,the legislature is formally supreme and appoints a member from its house as the prime minister which acts as the executive. In a presidential system, according to the separation of powers doctrine, the legislature is considered an independent and coequal branch of government along with both the judiciary and the executive.

The judiciary (also known as the judicial system or judicature) is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of government is often tasked with ensuring equal justice under law.

It usually consists of a court of final appeal (called the “supreme court” or “constitutional court”), together with lower courts. Reference http://www. absoluteastronomy. com/topics/Separation_of_powers http://en. wikipedia. org/wiki/Executive_(government) http://en. wikipedia. org/wiki/Judiciary http://en. wikipedia. org/wiki/Legislature http://en. wikipedia. org/w/index. php? title=Special%3ASearch&search=legislature+branch http://en. wikipedia. org/wiki/Separation_of_powers http://www. exampleessays. com/viewpaper/49137. html http://www. bing. com/search? q=separation+of+powers&src=IE-SearchBox

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