The answer to all of these questions— the reason that we are instinctively able and compelled to denounce the societies illustrated in the examples — is that each of the examples depicts a society operating without the Rule of Law.
Defining the Rule of Law is, in many ways, like trying to define the meaning of life. Like the meaning of life, the Rule of Law is a basic, essential, and fundamental concept that has been wrestled with by philosophers, individuals, and societies for centuries and that, in the end, can be different things to different people.
Also like the meaning of life, however, the main problem with the Rule of Law lies not so much in knowing what it is, but rather in putting that knowledge into words. Thousands of books and articles have been written by people in various fields of study or enterprise, all trying to capture in words the essence of the Rule of Law. Some of the most concise, comprehensive, and understandable descriptions of this principle, however, have come from the Supreme Court of Canada.
But exactly how does the Rule of Law lend order to society? What are the components or elements of the Rule of Law which lead to the structure and accountability described by the Supreme Court of Canada? Once again, while numerous scholars have expressed countless opinions about the precise content of the Rule of Law, some basic, generally accepted components of the Rule of Law can be identified. In one of the first attempts to articulate exactly what is meant by the Rule of Law, A.
Dicey said that the rule of law contains three elements:. Instead of society being ruled by the desires or interests of a particular person or group, which desires and interests may fluctuate daily, society should be ruled by law.
Among other things, a society that is ruled by law must have procedures in place for ensuring that people in positions of power are not able to arbitrarily manipulate social order. So, laws must be created only in accordance with established and agreed upon procedures; laws cannot be created arbitrarily and without warning to the public. Laws must be equally applied to both the law-makers and ordinary citizens. Laws must be applied in predictable and established fashions, rather than depending solely on the whims of the law-makers or law-enforcers.
In hearing that the Rule of Law is a principle that mandates objectivity in our legal system, many people argue that this principle is not followed in our country because the law, in fact, frequently applies differently to different people.
For example, one person charged with murder might be given a penalty that is completely different than another person charged with the same crime. Similarly, one person injured in a car accident might be awarded far more compensation than another person who has suffered similar injuries. A police officer may issue a speeding ticket to one driver, but not to another driver who committed the same offence. The Rule of Law, however, does not necessarily require that all people be treated identically.
Instead, the Rule of Law simply requires that the law give the same considerations or apply the same standards to persons in similar circumstances.
The result of the application of those considerations or standards may differ significantly depending on the case. So, two people who have committed murder may receive different penalties if one person is a serial killer and the other is not.
Similarly, a person injured in a car accident may receive more compensation than another person who suffered similar injuries if the first individual was blameless in the accident and the second individual somehow contributed to the accident. A police officer can properly decide to issue a warning rather than a ticket to one speeder and to issue a ticket to another speeder if the officer has reasonable grounds to think that the first speeder only needs a warning as a deterrent and the second speeder needs a ticket to learn his lesson.
In all of these circumstances, however, the Rule of Law remains at play because the difference in treatment depends on established criteria and not on the whims of the person administering the system. The fact that the Rule of Law is intrinsic to our society is demonstrated by the discomfort we feel when confronted with legal systems which operate without the Rule of Law, as with the examples noted at the start of this article.
Duplessis , , meaning that the Rule of Law forms part of the supreme law of our country, binding on all levels of government and enforceable by the courts. Apart from the fact that our constitution expressly recognizes or refers to the Rule of Law, the Supreme Court of Canada has also suggested that the very existence of our constitution implicitly demonstrates our respect for the Rule of Law because a constitution is by nature intended to be a supreme, objective law which describes the expected social order and which both governments and citizens must follow.
The founders of this nation must have intended, as one of the basic principles of nation building, that Canada be a society of legal order and normative structure: one governed by rule of law.
While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution. On the contrary, like all other legal principles, the Rule of Law is sometimes violated—either intentionally or unintentionally, directly or indirectly, and in a myriad of different ways. So, while we can and should take for granted the important role that the Rule of Law plays in our society, we cannot and should not necessarily assume that the Rule of Law will always be followed by our law-makers.
As with all other legal principles, we have to look to the courts to ensure that the Rule of Law is enforced. To date, Canadian courts have played a very active role in maintaining and enforcing the Rule of Law. The courts have referred to, defined, and applied the Rule of Law in many cases.
These four universal principles constitute a working definition of the rule of law. They were developed in accordance with internationally accepted standards and norms, and were tested and refined in consultation with a wide variety of experts worldwide. The latest edition of the Index relies on surveys of more than , households and 4, legal practitioners and experts to measure how the rule of law is experienced and perceived worldwide. Our data provides current and reliable information to policy makers, civil society organizations, academics, citizens, businesses, and legal professionals, among others.
Index findings have been cited by heads of state, chief justices, business leaders, and public officials, including media coverage in more than countries worldwide. Follow the links below to learn more about these factors and to see the latest scores for the countries and jurisdictions included in the Index.
Constraints on Government Powers. Absence of Corruption. Open Government. Fundamental Rights. Order and Security. Regulatory Enforcement. Civil Justice. Criminal Justice. No matter who we are or where we live, the rule of law affects us all. It is the foundation for communities of justice, opportunity, and peace—underpinning development, accountable government, and respect for fundamental rights. Research shows that rule of law correlates to higher economic growth, greater peace, less inequality, improved health outcomes , and more education.
0コメント