Rule of Law and Ethics

A resource for leading organizations, model programs, rule of law information, and more. [16] Compliance with the rules, like any law in an open society, depends first and foremost on understanding and voluntary compliance, secondly on strengthening peer and public opinion, and finally, if necessary, enforcement through disciplinary procedures. However, the rules do not exhaust the moral and ethical considerations that should guide a lawyer, as no rewarding human activity can be fully defined by legal rules. The rules only provide a framework for ethical legal practice. (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. These rules would appear impersonal to protect people from each other, as they would not target any particular person or situation, and their operation would not depend on the government`s expectations of the particular effects of their application. However, this lack of specific knowledge on the part of the government would be offset by the fact that the rules would provide a framework of predictability for ordinary people and businesses. They know that they are not harassed by the state, as long as they act within the framework of general and impersonal rules. Human freedom, according to Hayek, did not exclude all state action; But this requires that the government`s action be calculable. During.

The logical force of Professor Raz`s assertion that I would reject it categorically in favour of a “thick” definition that includes human rights protection within its scope can be seen. A State that brutally oppresses or persecutes parts of its population cannot, in my view, be considered governed by the rule of law, even if the transportation of the persecuted minority to a concentration camp or the forced exposure of female children on the mountainside is the subject of detailed laws duly promulgated and scrupulously observed. (Bingham 2010:67) No account of the rule of law is complete if it does not mention how this ideal is frowned upon. The glowing history of the rule of law in the works of thinkers such as Aristotle, Locke, Dicey, Hayek and Fuller was joined by opponents of legality such as Plato (in The Statesman), Thomas Hobbes (at least if the rule of law is to take us beyond the rule of law) and Carl Schmitt in 1923 (in his attack on parliamentarism and the liberal hypothesis, that rules may prevail even in conditions of endemic crises). Some theorists distinguish between the rule of law and what they call the rule of law (see, for example, Tamanaha 2004:3). They celebrate one thing and denigrate the other. The rule of law should put law above politics. The idea is that the law should be above any powerful person and agency in the country. Domination by law, on the other hand, means the instrumental use of law as an instrument of political power. This means that the state uses the law to control its citizens, but never allows the law to be used to control the state. The rule of law is associated with the devaluation of legality by authoritarian regimes, for example in modern China.

Does it make sense to use the rule of law to assess how a society responds to emergencies? It is often assumed that emergencies require more persuasive and less procedurally burdensome forms of government action than are normally required. In fact, a number of possibilities have been discussed (Scheuerman 2006). One is to insist, in the name of the rule of law, that existing constitutional guarantees remain in force; After all, that`s what they`re designed for, and these situations are where they`re needed most. On the other hand, in emergencies, there could be a general spirit of flexibility and circumstantial sensitivity in government action, which is also encouraged in normal times. In this second option, the rule of law does not present itself as a major obstacle to the flexibility of the State`s action in the face of dangers. As a third option, one could try to preserve something like the rule of law by establishing in advance specific legal rules for emergency situations — rules that, for example, suspend general guarantees of liberty or give staff members a wide margin of appreciation to take actions that would normally be governed by general legal norms. (Machiavelli proposed a version in his Discourses (1517) and praised the institution of the dictator in the Roman Republic.) This option has the advantage of predictability; But its disadvantage is that it advocates a kind of light of the rule of law that can eventually infect or replace the concept of rule of law that is normally supposed to be applicable. [14] Rules of ethics are rules of reason. They must be interpreted in terms of the purposes of legal representation and the law itself. Some of the rules are imperatives set out in the terms “shall” or “shall not”.

These define correct behaviour for the purposes of professional discipline. Others, which are generally included in the term “may,” are permissive and define areas in the Rules of Procedure in which counsel has discretion to exercise professional judgment. No disciplinary action should be taken if the lawyer decides not to act or acts within this discretion. Other rules define the nature of the relationship between the lawyer and others. The Rules of Procedure are therefore partly binding and disciplinary and partly constitutive and descriptive, since they define the professional role of the lawyer. Many of the comments use the word “should.” The comments do not add obligations to the rules, but provide guidelines for exercising according to the rules. In all business transactions, the big goal should be certainty: . It is more important that a rule is secure, as if the rule were defined one way and not the other. (Lord Mansfield in Vallejo v. Wheeler (1774) 1 Cowp.

143, p. 143). 153 (quoted in Bingham 2010:38)) as a stubborn and stupid person who refuses to allow any deviation or questioning of his own rules, even if the situation has actually changed and it turns out to be better for someone to violate those rules. (statesman 294b-c) To what extent should the rule of law have the role of eliminating or reducing discretion in how a society is governed? Some jurists, such as Dicey (1885) and, to a lesser extent, Hayek (1944), insist that formal discretion is inherently contrary to the rule of law. Others, such as Davis (1969), condemn this position as extravagant, arguing that discretion is indelible in the modern administrative state. The rule of law is not about removing discretionary powers, but about ensuring that they are properly drafted and approved, and that the application of judicial rules and procedures is respected in cases where freedom and well-being are most at stake. No one doubts that legislation can sometimes undermine the rule of law, for example by purporting to remove the legal responsibility of a number of official acts or exclude the possibility of judicial review of executive actions. But this is not a problem with the legislation as such; This is a concern about the content of some regulations. Moreover, rule by judges can sometimes be seen as precisely the type of male rule that the rule of law is intended to replace (see Waldron 2002: 142-3 and 147-8). On the other hand, as we have seen, Joseph Raz (1979 [1977]:211) is famous for insisting that “the rule of law is only one of the virtues that a legal system can possess and by which it must be judged,” and that we should not try to read in other considerations of democracy.

Human rights and social justice. These considerations, he said, are best understood as independent dimensions of evaluation. Tom Bingham stated in his book on the rule of law in response to Raz: The meaning of what good legislation and the administration of law require, conveyed by the principles of the rule of law, is sometimes criticized as archaic. Supporters of the rule of law often think in terms of clearly worded and forward-looking measures, proclaimed as norms that stand on behalf of the community as a whole and can provide a publicly acknowledged framework for their actions and actions. But this is not how law really works in the modern world. As Rubin pointed out in 1989, much of modern legislation is simply a framework that requires legislative drafters to develop much more detailed rules that are communicated to the public – if necessary – through much more complex and nuanced forms of communication than those contemplated in traditional models of the rule of law. For example, the principles contained in the inner morality of Fuller`s Law of 1964 – see section 3.6 above – may be recipes for producing laws favorable to legalistic concerns for clarity and predictability. But this has little or nothing to do with how the law actually works, or how legislators communicate with agencies, and agencies in turn communicate with those whose actions and companies they oversee (Rubin 1989: 397-408). The rules themselves were part of the problem: “People and situations differ, and human affairs are characterized by an almost permanent state of instability” (Statesman 294b). They would only be used as a (distant) back and forth if one felt that one could not recognize or trust the appearance of expertise in political life. These concerns are reflected in the work of modern legal pragmatists (such as Posner 1995), who place much more reliance on judges` views on new situations than on the application of established rules or strained analogies with old precedents.