The Statute of the Council of Europe makes the rule of law one of the fundamental principles on which the establishment of the organisation is based. Paragraph 3 of the preamble to the Statute of the Council of Europe states: “Reaffirming their attachment to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political freedom and the rule of law, principles which constitute the foundation of any genuine democracy”. The Statute establishes respect for the principles of the rule of law as a precondition for full membership of European states. [68] East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as the rule of benevolent and virtuous rulers, and legalism, which advocated strict adherence to the law. The influence of one school of thought on another has changed over the centuries. A study shows that across East Asia, only South Korea, Singapore, Japan, Taiwan and Hong Kong have societies that strongly advocate for the rule of law. [61] According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Cambodia and much of Asia is weak or non-existent: India is governed by the longest constitutional text in world history since 1950. Although the Indian constitution would eventually have to contain details that would limit the possibilities of judicial discretion, the more text there is in a constitution, the more possibilities the judiciary may have to exercise judicial review. [64] According to Indian journalist Harish Khare, “the rule of law or the constitution risks being replaced by the rule of judges.” [65] The “rule of law” means, first and foremost, “protection of property rights.” [90] Economist F.
A. Hayek analyzed how the rule of law could be beneficial to the free market. Hayek suggested that under the rule of law, individuals would be able to make wise investments and future plans with some confidence in a successful return on investment, when he said: “Under the rule of law, government is prevented from crippling individual efforts by ad hoc action. Within the known rules of the game, the individual is free to pursue his personal goals and desires, with the certainty that the power of government is not deliberately used to thwart his efforts. [91] The American democratic system is not always based on the simple majority rule. Certain principles are so important to the nation that the majority has agreed not to interfere in these areas. For example, the Bill of Rights was adopted because concepts such as freedom of religion, freedom of expression, equal treatment and due process were considered so important that even a majority should not be allowed to change them. The rule of law implies that everyone is subject to the law, including legislators, law enforcement officers and judges.
[8] In this sense, it opposes tyranny or oligarchy, where rulers are above the law. Even if the principles of the rule of law are purely formally applicable, we do not appreciate them only for formalistic reasons. More fundamentally, people value the rule of law because it takes away some of the advantage of the power necessarily exercised over them in a political community. In many ways, the rule of law means that power is less arbitrary, more predictable, more impersonal, less coercive, even less coercive. He notes what Fuller (1964: 39-40) called a bond of reciprocity—a reciprocity of coercion—between leader and ruled, and in this sense he mitigates the asymmetry that political power otherwise brings. (1) Wartime governance necessarily required the full mobilization and management of all the work and resources of society. Hayek warned in 1944 against maintaining this type of administration in peacetime. He eloquently argued that in normal times, a society does not need to be managed, but should be governed – and its inhabitants should be largely left to fend for themselves – within a framework of general rules established in advance.
