APPROACHES TO THE FORMATION OF THE CONCEPT OF STATE OF LAW
APPROACHES TO THE FORMATION OF THE CONCEPT OF STATE OF LAW
Aidos Atzhan
PhD candidate of Political Science, Department of political science and social and philosophical disciplines, Abay Kazakh National Pedagogical University,
Kazakhstan, Almaty
ABSTRACT
The role of law based on key democratic principles such as equality before the law, accountability before the law, separation of powers and participation in decision-making. Like democracy, the rule of law is a governance principle based on participatory and consultative processes. For laws to be legitimate, they must be widely studied and reflect the needs and values of society. A democratically elected parliament and a strong civil society provide ideal mechanisms to achieve this goal. Modern globalization creates its own approaches to the formation of the concept of the state of law.
Keywords: concept, democracy, civil society, rule of law, globalization, state of law.
Introduction
Over the past decade, many scientists have tried to determine what the concept of “state of law” really means, what are its main features. These efforts have greatly contributed to the understanding of the role of law, but none of them has provided a definition that is acceptable to all.
According to R. Fallon, this is not surprising, since the role of law is "essentially a provoked concept." This means that the “true” meaning of the role of law depends on the resolution of conflicting regulatory issues [5, p. 7]. Some of the disputes about the rule of law and the role of law can be resolved by taking into account the national context in which the concept is used. For example, it makes sense to view the citizen's right to a jury trial as an important element of the rule of law in a country with a corresponding tradition.
The differences between the definitions of the concept of the state of law mainly reflect views on the desirability or necessity of having certain instruments to protect citizens from the state and to protect one citizen from another. This choice based on views on which instruments are best suited to achieve the optimal balance between the constraints of government power and the protection of property and citizens' lives.
The development of the model of the concept of the state of law, proposed in this study, consists of three stages. This approach based on a thorough analysis of the concepts of the state of law in the literature [1, p. 5].
The first step is purely heuristic: its argument is not that certain elements should be part of the concept of the state of law, but which elements, according to literary sources, considered as part of it.
The second step is to classify the found items into three categories. These are the well-known categories of formal and basic elements, but a third category we added for clarity. Usually referring to formal elements "control mechanisms" are so different in nature and so important that they must have their own name. The result of this is a conceptual framework for the role of law, which takes into account the concepts of the state of law used. This framework forms the basis for the third and final step, which provides a starting point for exploring the concept of the state of law. It consists of adding questions to each item. They are partly legal in nature, and partly empirical, and they need to be further clarified, "broken" and adapted to the case under study or the legal field.
This third step brings us to the last question that needs to be addressed before setting out the model. It concerns the distinction between norm and fact. The point is not so much that there will be disagreements about whether there is a state of law, when the state is bound by obligations only legally, and not in practice, or that the rights of its citizens are guaranteed only on paper. Anyone would agree that a state that does not comply with its rules is not a state of law. However, most - if not all - definitions also assume that citizens generally obey the law, as well as to ensure the rule of law, even if it primarily concerns the state.
Main part
The proposed option within the framework of this study to define the concept of the state of law is as follows: instead of talking about the "rule of law" as a monomorphic concept for analytical purposes within the framework of the concept, we should divide it into elements.
This is not a new idea. Various authors have attempted to classify on the basis of what might be called elements, but most do not offer a systematic approach and do not clearly explain why they include some elements while ignoring others [6-7].
There are two approaches to a more systematic classification. The first was to draw the familiar distinction between formal and substantive versions of the concept of state of law - formal versions that go back to the Greek tradition and are essential to Locke's approach to fundamental rights. The official versions relate to the law as an instrument and foundation of the state, but they do not say anything about what the law should regulate. On the other hand, versions essentially set standards for the content of the norm, which must be morally justified.
The second approach to classification based on the understanding that the definitions of the role of law and the concept of state of law vary from limited to complex, and that there is some consistency in this.
Consider the approach promoted by R. Kleinfeld. She distinguishes between the means and aims of the rule of law and the role of law, and argues that it makes sense to view aims as a distinguishing feature rather than a means. According to Kleinfeld, there are five aims: government bound by the law, equality before the law, law and order, predictable and effective justice, and no human rights violations by the state. Although her point of view is original, Kleinfeld's categories suffer from the same lack of specificity as minor and significant differences. Moreover, they are not broad enough to include elements of the rule of law that often considered as part of it, such as democracy. Even more problematic is Kleinfeld's assertion that her categories can’t be reduced to one another. For example, “no violation by the state of human rights” probably requires that the government bound by the law and citizens are equal before the law [3, c. 35].
In fact, Kleinfeld's aims can easily be linked to the two functions mentioned earlier, with government bound by the law, equality before the law, and non-violation of human rights by the state as a result of the function of "protecting citizens from the state''. Law and order, and predictable and effective justice related to the function of “protecting citizens from each other.” Thus, the means that Kleinfeld offers to achieve these aims fit well into the scheme that described below.
The protection of citizens from the state does not require citizens to obey the law. One exception might be that citizens do not use the funds provided to them by law to offer them such protection, but this seems rather far-fetched. However, when it comes to the second function, the result will be different. If the townspeople do not comply with the law aimed at protecting their fellow citizens from encroachments on their lives and property, this means that the state does not fulfill this function. Therefore, it seems right to look at citizen’s compliance with the law by trying to measure the elements of the rule of law designed to fulfill the second function.
The category of procedural elements concerns the regime of government and legality and is present in any definition of the state of law - this is the first element of this category, that is, that the state rules by law. The origin of this element as a separate part of the rule of law is not entirely clear, since the earliest thinkers of the rule of law, such as Plato and Aristotle, were more interested in the issue of the subordination of the ruler to the law, which is the next element.
“Rule of law” within the state of law is usually opposed to “rule of the people”, which carries a connotation of arbitrariness. In this sense, the rule of law is indeed the ultimate basis of any attempt to restrict the exercise of state power. In fact, it also suggests that the state has the law at its disposal as a powerful weapon, without being subject to any of the restrictions that it inherently imposes.
The rule of law is the first step towards legitimacy based on good governance. Moreover, the use of general rules is necessary to manage large numbers of people to provide clarity and stability where self-regulation is undesirable or not allowed. Any case of state-building at some point requires the introduction of the rule of law, no matter how partial or awkward these attempts may appear from a modern point of view.
Likewise, M. Shapiro pointed out that, in resolving disputes, the consent of the parties regarding the applicable rules and the consent of the third party deciding the dispute have been superseded by law and official position. These measures are necessary so that the ruler can control the society, resolving disputes in accordance with the principles established by the ruler. This also means that any form of centralized power will have a certain degree of rule of law [7, p. 87].
The second element of the procedural category we should call it the common core of all definitions of the concept of the state of law. Legislation also needs such a framework. The law requires governments to obey their own rules. As already we mentioned, this requirement goes back to Plato and Aristotle and is strongly associated with the German concept of Rechtsstaaf, set forth in its “final” form by Karl Schmitt, with the absence of essential and democratic elements in it [8]. Initially, the concept of the state of law was limited by the idea that the sovereign can never obey the law, since he can change the law as he pleases, subsequently the procedural requirements established by law, democracy and ideas about natural law were able to overcome this problem.
The requirement that every state action has a legal basis may be of lesser importance if that legal basis lacks specificity. The traditional area of controversy here is the issue of discretionary power, perhaps better expressed in the German term “freies Ermessen”. M. Shapiro attributes to the government the ability to freely determine its policies without the need to account for it in any legal way. This recognizes the impossibility and undesirability of the legislator in advance to determine in detail every action of the government, but, on the other hand, it creates the danger that the government will act arbitrarily [7, p. 110]. As well as the issue of obedience to the law, this problem was solved by lawyers taking into account the requirements for the qualities of the law inherent in the next element in this category, and such concepts of administrative law as the principles of good governance.
Another legality issue concerns so-called “open concepts” in the law, such as “public interest,” “common good,” and others, which can be perceived by the government according to its own desires and preferences. Probably no concept has been used as often as the concept of "common interest", although it is impossible to completely abandon it or its equivalents. Discretionary power points to the fact that “law” is too general a concept if we want meaningful checks on government power. The simple postulate that government action must obey the law is too broad to warrant effective accountability. Therefore, this concept is closely intertwined with the following element, which determines what the law should be.
The principle of legality has another side, which does not imply the use of the law and can be taken into account by law only to a limited extent. This also applies to the requirement that the government always act legally in practice, but this problem is more difficult to solve than the previous problem, since it does not even claim legality through retroactive legalization of behavior. This applies both to a situation where government officials act without a legal basis, and to a situation when the state uses “ordinary citizens” for this purpose, such as vigilantes. Of course, it is possible to establish the legal rules and procedures to be followed in order to compel the entire state to act on this issue, but if such behavior is widespread, even the most “liberal” procedures applied by the most independent judiciary cannot control it. In the end, the behavior of the state bodies is essential. In most, if not all, concepts of the rule of law, this is the main litmus test for determining whether a state can be considered subject to the rule of law.
This also applies to the question that the state follows its own rules and procedures. No matter how obvious, since the rule of law is traditionally a legal concept, this “practical” side of the rule of law often ignored. On the other hand, developers of rule of law indicators may lose sight of legal issues and focus only on government practice. In particular, in this case, it is important to distinguish between the legal and empirical aspects of the concept of the state of law.
The law must meet certain requirements in order to effectively restrict the exercise of power. Formal legality allows citizens to plan their behavior as they can predict the state's response. In fact, the previous two elements are largely meaningless unless formal legitimacy is also respected.
Formal legality has a legal and institutional side. Determining whether rules are clear and consistent is probably the essence of legal science, as is making the law accessible. Obviously, there is a lot of debate about the right way to achieve this, for example, about whether the law should be written, codified, reformulated based on case law, but basically all of these methods can be used to develop a clear, definite, accessible and stable law. In any legal system, this will be the starting point for lawyers, whether they are writing a code, passing a sentence or entering into a contract.
This implies an important institutional requirement of formal legitimacy, which is the existence of a legal profession that takes the same view of law. If there are serious disagreements between them, problems with formal legality will inevitably arise.
While the previous elements in this category were more or less generally recognized as the basic elements of the state of law, democracy as such received much less recognition.
Sometimes democracy is used to add an essential element to the list of formal requirements. Laws will be fair if they are based on common agreement. The most sophisticated version of this argument comes from Habermas, who argues that in the absence of natural law, democratic procedures are the only guarantee of just law that society has. While there may be some truth to this, democracy is, after all, just a procedure that can never guarantee a substantially fair outcome. B. Tamanaha pointed out that for this reason democracy remains an "empty" concept, moreover that, democracy can give very unjust laws [4, p. 100].
The means of democracy, however, are primarily not legal, but political - although democratic rules somehow also become law, and there is an empirical link between democracy and respect for human rights.
The second category is essential elements. Whereas the previous category dealt with procedures aimed at preventing abuse of power, this category does the same by introducing substantive standards. However, many who do not adhere to natural law theories still recognize essential elements as part of the rule of law. The most "relative" of these elements consists of principles of justice, morality and due process. In addition, this element is vital for the legitimacy of the legal system in the eyes of the citizens of a particular state. Regardless of how clearly the prescriptions of the procedural elements are followed, they cannot guarantee a substantially fair outcome of the application of the law. If many consider the results of the law unfair, the entire system could be threatened.
The concept of the state of law also based on the protection of individual rights and freedoms. Included by many in their definition of the rule of law, human rights largely contain aspects of the previous category translated into rights such as fair trial. Recognized by almost all states of the world, the rights and freedoms of the individual are less flexible than the principles of justice and morality discussed above, which at the same time is an advantage and a disadvantage. A growing amount of anthropological literature on human rights reveals the importance of their contextualization when used as a criterion for state behavior, and this argument applies equally to their use within the state of law.
Perhaps the main reason for integrating human rights into the rule of law is that this field has become a central unifying theme of development cooperation, and it has gradually become clear that in order to achieve any improvement in the realization of human rights, whether it concerns the right to freedom of the press or for food, an effective legal system is needed.
The next category of the state of law concept is control mechanism, which include an independent judiciary (sometimes extended to “trias politica”) and other institutions endowed with protective elements of the rule of law.
The independence of the judiciary is usually cited as a formal element of the rule of law, but its institutional nature makes it more suitable for separate consideration. It may be added that the judiciary is not only concerned with the protection of the formal elements of the rule of law. In practice, judges will use all types of media techniques to achieve a result acceptable to the parties to the dispute. It is generally accepted among legal theorists that judges should try to achieve a substantively fair outcome - and it is clear that they should also take human rights into account [2-3].
The growing complexity of state organization has led to an increase in specialization in the performance of state functions, and this trend has spread to the institutional side of some parameters of the concept of the state of law. A good example is NHRIs, which have increased from a few around twenty years ago to 120 today. Another important institution is the Ombudsman, which has entered many systems, and you can also recall many other institutions that control the actions of the state.
Moreover, an interesting feature of such institutions is that sometimes they are introduced to replace a faulty judicial system. Even if there is no doubt that an independent judiciary remains at the center of control over the executive branch, in certain situations and areas their role, at least in part, has been assumed by the ombudsmen, national human rights committees, and anti-corruption courts etc.
The model of the concept of the state of law proposed in the framework of the study is interdisciplinary in nature, since the research questions consider the elements from both a legal and an empirical point of view (Figure 1).
Figure 1. Model of the concept of the state of law [compiled by the author]
Empirical questions are necessary to obtain reliable information about the state of certain elements. The result of the model is an understanding of the relationship between the elements of the state of law and contextual factors.
Conclusion
In modern globalizing world, the attention of the international community is increasingly focusing on the impact of the international rule of law on people. At the current stage of development of the international system, the rule of law in relation to interstate relations alone can no longer characterize the international rule of law. The critical importance of the rule of law as applied to individuals should be appreciated in the new context of the international community, when it became necessary to uphold certain unshakable principles of justice and human dignity while protecting human rights at the international level. Indeed, international law has evolved to the point that it has led to a shift in the international legal order away from the purely state system that once defined it. Nowhere is this more evident than in the rapid expansion and growing importance of humanitarian and human rights law.
The sharp rise in importance of these areas as pillars of the international legal system has transformed the system in two crucial and interrelated ways. First, substantive human rights norms based on the principles of justice and fundamental human values that go beyond the national borders of states have been introduced into the international legal order. Secondly, this, in turn, placed a person at the center of the international legal system as a subject of international law with internationally recognized rights. These events impose additional legal restrictions on the behavior of sovereign states in the international community; they also prescribe international norms guaranteeing an international standard of justice that is substantive in nature, extending the rule of law beyond its narrower and more formal aspects.
The expansion of international humanitarian law and the growing importance of human rights has accelerated a paradigm shift in the international legal system, bringing essential components of justice to the concept of the state of law at the international level. This is evidenced by the inclusion of universal values in new treaties and international conventions, as well as the work of numerous regional and international institutions and tribunals tasked with monitoring violations of the law. Among the manifestations of these changes - a sharp expansion of international criminal law and international judicial mechanisms associated with its application [1, p. 32].
Thus, the model of the concept of the state of law proposed in the study can help to emphasize the importance of the concept in the context of alternative normative orders, for example, based on Islamic or “traditional” law. Elements of the state of law can also be relevant in verifying the exercise of power in such non-modern state conditions. Given the decline of many powerful states and the revival or rethinking of traditional (customary) structures and other forms of normative ordering, this seems particularly relevant. Empirical research in this area can also help assess whether certain elements of the state of law have universal value in limiting the use of power.
References:
- Goodale M. 2007. Introduction: Locating Rights, Envisioning Law between the Global and the Local. Cambridge University Press, p.p. 1-38. https://www.researchgate.net/publication/283366762_Introduction_Locating_Rights_Envisioning_Law_Between_the_Global_and_the_Local
- Kaufmann D., Kraay A., Zoido-Lobatón P. Aggregating Governance Indicators. The World Bank. https://documents1.worldbank.org/curated/en/167911468766840406/115515322_20041117135531/additional/multi-page.pdf
- Tamanaha B. 2012. On the rule of law. Cambridge University Press, p.p. 99-101. https://www.cambridge.org/core/books/on-the-rule-of-law/A22B686FAAED3D4ACA202BEF5FC760EB
- Fallon R. 1997."The Rule of Law" as a Concept in Constitutional Discourse. Columbia Review. Volume 97. No 1. p. 68. https://www.jstor.org/stable/1123446?origin=crossref&seq=1
- Hager B. 2000. The Rule of Law : A Lexicon of Policy Makers. p. 120. https://mansfieldfdn.org/wp-content/uploads/2018/05/The-Rule-of-Law-A-Lexicon-for-Policy-Makers.pdf
- Shapiro M. 1981. Courts: A comparative and political analysis. The University of Chicago press books, p. 220. https://press.uchicago.edu/ucp/books/book/chicago/C/bo5967169.html#:~:text=In%20this%20provocative%20work%2C%20Martin,courts%20in%20different%20political%20systems
- Schmitt C. 2017. Verfassungslehre. https://dpp.mpil.de/08_2019/08_2019_72_99.pdf