It may even be said that for the Rule of Law to be effective it is more important that there should be a rule applied always without exceptions than what this rule is. To revert to a former example: it does not matter whether we all drive on the left- or on the right-hand side of the road so long as we all do the same. The important thing is that the rule enables us to predict other people’s behavior correctly, and this requires that it should apply to all cases — even if in a particular instance we fell it to be unjust.
Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty who the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge. Though this ideal can never be perfectly achieved, since legislators as well as those to whom the administration of the law is entrusted are fallible men, the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough. While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate is efforts.
Man is free if he needs to obey no person but solely the laws.
The appellate courts have no discretion to refuse cases — they must accept all appeals brought before them. Because they are not trial courts, the appellate courts only review question of law (whether the law was properly applied to the facts), not question of fact (such as whether an event really took place). Because the Supreme Court takes very few cases, court of appeal rulings are rarely overturned.
Confucianism adopted the concept of “li”: an intense opposition to any system of fixed rules that applied universally and equally. Though Chinese “legalists” sought to undermine the political authority of this Confucian philosophy of persuasion by championing “rule by law” (“fa”) in place of the organic order of the Confucian “li”, the latter continues to dominate China.
Without law, society is barely conceivable. We tend, unfortunately, towards egoism. The restraint that law imposes on our liberty is the price we pay for living in a community. “We are slaves of the law so that we may be free.” And the law has provided the security and self-determination that has, in large part, facilitated social and political advancement.
The cliche “law and order” is perhaps more accurately rendered “law for order.” Without law, it is widely assumed, order would be unattainable. And order — or what is now popularly called “security” — is the central aim of most government.
The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
Lawyers, on the other hand, are not state officials. They owe a strong duty to their clients. They must, of course, work within the system, but their responsibility is to utilize the law, not to dispense justice. They may find the law morally repugnant, but their role within an unjust legal system is easier to justify than that of the judge.
In respect of the common law of England, the previous decisions of courts (judicial precedents) are a fundamental source of law. The doctrine of precedent stipulates that the reasoning deployed by courts in earlier cases is normally binding on courts who subsequently hear similar cases. The idea is based on the principle “stare decisis” (“let the decision stand”). It is, of course, designed to promote the stability and predictability of the law, as well as ensuring that like cases are, as far as possible, treated alike.
The common law stipulates that until you accept my offer I am at liberty to withdraw it. German, Swiss, Greek, Austrian, and Portuguese law, on the other hand, provide that I am bound by my offer; I cannot simply revoke it with impunity. The French and Italian Civil Code provides that an offer may not be revoked before the expiry of a specified period. If no period is specified in the offer, it may be withdrawn until acceptance.
The state, by assuming responsibility for chastising the criminal, reduces the risk of victims of crime “taking the law into their own hands.”
The ubiquity of conflict among humans necessitates some forum in which they might be amicably resolved. Courts are a prerequisite of all legal systems. They have power, authority — or what lawyers called “jurisdiction” — over specified criminal, civil, and other matters. This entails that their decisions (which are ultimately supported by force) are accepted as authoritative by the parties, who would be unlikely to do so if they did not trust in the independence and impartiality of the professional judges on the bench.
Some trial courts operate with a judge and a jury: juries are responsible for making findings of act under the direction of the judge, who decides the law. This combination constitutes the judgment of the court. In other trial courts, both fact and law are decided by the judge.
Appellate courts in common law jurisdictions review the decisions of trial courts or lower appellate courts. Their task is generally restricted to considering questions of law: did the trial court, for example, apply and interpret the law correctly? Normally they do not hear evidence of factual issues, though should new evidence have emerged, an appeal court may evaluate it in order to determine whether the case should be remitted to a court of first instance to be retried.
Among the much-vaunted virtues of the jury trial is the extent to which it operates as a curb on the power and influence of the judge. By involving (usually 12) ordinary citizens in the administration of justice, it is argued, the values of the community may be expressed. A group of randomly selected lay persons, it is claimed, is a more democratic arbiter of guilt than a judge, who is perceived, rightly or wrongly, as an agent of the government.
Critics of the jury, on the other hand, normally express unease about the fact that juries, unlike judges, are not required to give reasons for their decision, thereby opening the door to emotion and prejudice, especially when the race of the defendant may be a factor. Doubt is also voiced in respect of the ability of the average juror to comprehend complex scientific or other technical evidence. Complex commercial trials, for example, generate an enormous quantity of highly specialized information.
While lawyers and politicians celebrate the virtues of the rule of law, reformers lament its shortcomings, and cynics question its professed equivalence with justice.
8 ways King Rex fails to make law:
- He fails to achieve rules at all, so that every issue must be decided on an ad hoc basis.
- He does not publicize the rules that his subjects are expected to observe.
- He abuses his legislative powers by enacting retroactive legislation.
- His rules are incomprehensible.
- He enacts contradictory rules.
- He enacts rules that require conduct beyond the powers of the affected party.
- He introduces such frequent changes in the rules that his subjects cannot adjust their action.
- He fails to achieve congruence between the rules as announced and their actual administration.
Principles differ from policies in that the former is “a standard to be observed, not because it will advance or secure an economic, political, or social situation, but because it is a requirement of justice or fairness or some other dimension of morality.” A policy, however, is that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community.
Principles describe rights; policies describe goals. But rights are trumps. They have a “threshold weight” against community goals. They should not be squashed by a competing community goal.
The sword signifies the power of those who occupy judicial positions; the scales symbolize the neutrality and impartiality with which justice is served. In the 16th century, artists portrayed her blindfolded to emphasize justice is blind: resistant to pressure or influence.
Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party … that a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will my case be completed within a decade?
A challenge of the modern period is that issues have become so complex that the legal framework is increasingly impenetrable. The political system issues directives but the execution is left, to an ever larger degree, to bureaucracies separated from both the political process and the public, whose only control is periodic election, if that. Even in the US, major legislative acts often comprises thousands of pages that, to put it mildly, only the fewest legislators have read in detail. Especially in the Communist states, bureaucracies operate in self-contained units with their own rules in pursuance of procedures they often define for themselves. Fissures open up between the political and the bureaucratic classes and between both of those and the general public. In this manner, a new mandarin class risk emerging by bureaucratic momentum. Mao’s attempt to solve the problem in one grand assault nearly wrecked Chinese society.
Law is a system of rules, regulations, and principles established by a governing authority to regulate behavior within a society. It provides a framework for maintaining order, resolving disputes, protecting individual rights, and promoting justice.
Justice involves the concept of due process, which guarantees that individuals are treated fairly and have the right to a fair and impartial legal proceeding. This includes the right to be heard, present evidence, and receive a fair judgment based on the rule of law.
In addition to individual justice, the concept of social justice focuses on the fair distribution of resources, opportunities, and benefits within a society. It seeks to address systemic inequalities and promote equality of outcomes for all members of society.
A good deal of the attention given to the income tax is based on the proposition that the tax is neither logical or equitable. Probably the broadest and most serious charge is that the law has close to its heart something very much like a lie; that is, it provides for taxing incomes at steeply progressive rates, and then goes on to supply an array of escape hatches so convenient that hardly anyone, no matter how rich, need pay the top rates or anything like them.
Still another school of critics contends that because of its labyrinthine quality (the basic stature, the Internal Revenue Code of 1954, runs to more than 1K pages, and the court rulings and IRS regulations that elaborate it come to 17K) the income tax not only results in such idiocies as gravel-producing actors and unborn partners but is in fact that anomaly, a law that a citizen may be unable to comply with by himself. This situation, the critics declare, leads to an undemocratic state of affairs, for only the rich can afford the expensive professional advice necessary to minimize their taxes legally.
When it comes to the income tax, we almost all want reform. As reformers, however, we are largely powerless, the chief reasons being the staggering complexity of the whole subject, which causes many people’s minds to go blank at the very mention of it, and the specific, knowledgeable, and the energetic advocacy by small groups of the particular provisions they benefit from. Like any tax law, ours had a kind of immunity to reform; the very riches that people accumulate through the use of tax-avoidance devices can be — and constantly are — applied to fighting the elimination of those devices. Such influences, combined with the fierce demands made on the Treasury by defense spending and other rising costs of government (even leaving aside hot wars like the one in Vietnam), have brought about 2 tendencies so marked that they have assumed the shape of a natural political law: In the US it is comparatively easy to raise taxes and to introduce tax-avoidance devices, and it is comparatively hard to lower tax rates and to eliminate tax-avoidance devices.
In most countries, it’s impossible to engage in a serious discussion of income taxes, because they aren’t taken seriously. They are taken seriously here, and part of the reason is the power and skill of our income-tax police force, the IRS.
Unquestionably, the “swarm of officials” feared by the Pennsylvania congressman in 1894 has come into being — and there are those who would add that the officials have the “inquisitorial powers” he also feared. As of 1965, the IRS had approximately 60K employees, possessing the right to inquire into every penny of everyone’s income and into matters like exactly what was discussed at an expense-account meal, and armed with threat of heavy punishments, have powers that might reasonably be called inquisitorial.
He is more pessimistic than Caplin about finding the answer in simplification. “Perhaps we can move the rates down and get rid of some deductions, but then we may find we need new deductions, in the interests of fairness. I suspect that a complex society requires a complex tax law. If we put in a simpler code, it would probably be complex again in a few years.”
If the single most important law now on the statute books of the US is the income-tax law, it would follow that we must have the income-tax law we deserve. Much of the voluminous discussion of the income-tax law in recent years has centered on plain violation of it, among them the deliberate padding of tax-deductible business-expense accounts, the matter of taxable income that is left undeclared on tax returns, fraudulently or otherwise — a sum estimated at as high as $25B a year — and the matter of corruption within the ranks of the IRS, which some authorities believe to be fairly common, at least in large cities. Such forms of outlawry, of course, reflect timeless and worldwide human frailties. The law itself, however, has certain characteristics that are more closely related to a particular time and place and national characteristics.
Throughout its life, the rate of 91% was a public tranquilizer, making everyone in the lower bracket feel fortunate not to be rich, and not hurting the rich very much. And then, to top off the joke, if that is what it is, there are people with more income than anyone else who pay less tax than anyone else — that is, those with annual incomes of $1M or more who manage to find perfectly legal ways of paying no income tax at all.
One obstacle to any victory more sweeping is the fact that many of the Code’s complexities were introduced in no interest other than that of fairness to all, and apparently cannot be removed without sacrificing fairness.
There are several forces that work against the enactment of tax-reform measures, among them the skill, power, and organization of the anti-reform lobbies; the diffuseness and political impotence of the pro-reform forces within the government; and the indifference of the general public, which expresses practically no enthusiasm for tax reform through letters to congressmen or by any other means, perhaps in large part because it is stunned into incomprehension and consequent silence by the mind-boggling technicality of the whole subject.
In sum, the lawyers for the 2 sides could agree on neither whether the rules had been violated nor what the rules actually were; indeed, it was one of the defense contentions that the SEC was asking the court to write new rules and then apply them retroactively, while the plaintiff insisted that he was merely asking that an old rule be applied broadly.
It could be argued that a judiciary with a very high degree of political independence (for example, the German or Japanese judiciary) is not necessarily desirable, as it lacks democratic accountability. This is why some countries elect some of their judicial officials — the best-known examples being the USA today, and the UK in the 19th century. In the UK, the boundary between the judiciary and the legislature is also blurred, since its highest judges sit in the House of Lords; however, few people would argue that this is a major problem.
Given this, we need to understand the quality of the judiciary not simply in terms of its political independence, but in a number of dimensions — the professionalism of the judicial officials, the quality of their judgments (not simply from a narrow “rule of law” point of view, but also from a broader societal point of view) and the cost of administering the system.
Like their counterparts in modern-day developing countries, the judiciary in many NDCs suffered from excessive political influence and corruption in appointments (or, where applicable, elections) up to, and often beyond, the late 19th century. It was also frequently filled exclusively with men from a narrow, privileged social background with little, if any, training in law, with the result that justice was often dispensed in biased and unprofessional ways.
While the debate is still unresolved as to what makes the best bankruptcy law — the USA’s debtor-friendly law, the UK’s creditor-friendly one, or the employee-protecting French one — there is little disagreement that an effective bankruptcy law is desirable.
In pre-industrial Europe, bankruptcy law was mainly regarded as a means of establishing the procedures for creditors both to seize the assets of and to punish dishonest and profligate bankrupt businessmen. In the UK, the first bankruptcy law, applicable to traders with a certain amount of debt, was introduced in 1542, although it only became consolidated with the 1571 legislation. However, the law was very harsh on the bankrupt businessmen, as it deemed that all their future property was liable for former debts.
With industrial development came an increasing acceptance that business can fail due to circumstances beyond individual control, not just as a result of dishonest or profligacy. As a result, bankruptcy law also began to be seen as a way of providing a clean slate for bankrupt. This transformation of bankruptcy law was, altogether with generalized limited liability, one of the key elements in the development of mechanisms for “socializing risk” that allowed the greater risk-taking necessary for modern large-scale industries.
What makes the discussion ugly at this point is that a lot of the arguments for stronger intellectual property rights are based on the notion of giving inventors and artists more “protection.” What people don’t seem to ever realize is that giving such powerful rights to some people also ends up taking rights away from others.
Now, if you want to avoid the bother with patents, you can go for the strongest drugs of IP, trade secrets. The advantage of the trade secret is that you don’t have to worry about a Trade Secret Office or anything at all: You can just stamp your IP “secret” and be done with it. You can still tell people about it, but you have to tell them it’s a secret.
People used to do this all the time before, and that is actually why patent law was originally introduced. In order to encourage individuals and companies to expose their secrets, patent law allowed for protection in the marketplace for some time if you divulged what your secret to success was. A basic form of tit-for-tat: You tell how you do something, and we’ll give you exclusive rights for X years.
Any sane person realizes that once a secret is out, it is no longer a secret. Except in the strange and twisty passages of IP law, where secrets can continue to be secrets even after everybody knows what they are. And where the knowledge you have in your head can get you sued, if you happen to work for the wrong employer. Some IP law is downright scary.
To a large degree, finding peace in this IP war is what open source is all about. While a lot of people have their own opinions about what open source really tries to do, in many ways you can see it as a high-tech detente, a defusing of copyright as a weapon in this fight of IP.
So open source would rather use the legal weapon of copyright as an invitation to join in the fun, rather than as a weapon against others.
Constitutional democracy places authority in an abstraction: obedience to law. But constitutionalism can function only if law is believed either to reflect an absolute standard of truth or grow out of a generally accepted political process. In most parts of the world and in most periods of time, these conditions have not existed. Law was the verdict of authority, not of legislative process; politics has been about who has the right to issue orders. Personal authority has been made bearable by a concept of reciprocal obligation, as in feudal societies, or when limited by custom, as was the authority of kings who ruled by the claim to divine right in the 17th and 18th centuries. In each case tradition was a limiting factor; certain extractions were impossible not because they were forbidden but because they had no precedent.
Any particular distribution of power, once it has reached some degree of stability, is hardened into a legal order. This legal order not only provides the new status quo with ideological disguises and moral justifications. It also surrounds the new status quo with a bulwark of legal safeguards, the violation of which will put into motion the enforcement mechanism of the law. The function of the courts is to put the enforcement action into motion by determining whether the concrete case under consideration justifies such action according the existing rules of law. Thus any system of existing law is of necessity an ally of the status quo, and the courts cannot fail to be its custodians. This is so in the international sphere no less than on the domestic scene. ***
The law in any country is built out of words, and words are always open to interpretation. Tax avoidance seeks to exploit this uncertainty of interpretation. No matter what legislation is in place, the accountants and lawyers will find a way around it. Rules are rules, but rules are meant to be broken.
The principles that has guided British courts ever since is an emphasis on the words of the legislation, not on their meaning or purpose. The principle was restated in the House of Lords in 1980: “A subject is only to be taxed upon clear words, not upon ‘intendment’ or upon the equity of an Act. Any taxing Act of Parliament is to be construed in accordance with this principle.”
The rule of law talks of habeas corpus, freedom, the right of association and expression, of assembly, of peaceful demonstration: nowhere in the world today are these rights allowed to be practiced without limitations, for blindly applied, these ideals can work toward the undoing of organized society. For the acid test of any legal system is not the greatness or the grandeur of its ideal concepts, but whether, in fact, it is able to produce order and justice in the relationships between person and person, and between person and the state. To maintain this order with the best degree of tolerance and humanity is a problem… In a settled and established society, law appears to be a precursor of order… But the hard realities of keeping the peace between person and person, and between authority and the individual, can be more accurately described if the phrase were inverted to “order and law,” for without order, the operation of law is impossible. Order having been established, and the rules having become enforceable in a settled society, only then it is possible to work out human relationships between subject and subject, and subject and the state in accordance with predetermined rules of law. And when a state of increasing disorder and defiance of authority cannot be checked by the rules then existing… drastic rules have to be forced to maintain order so that the law can continue to govern human relations. The alternative is to surrender order to chaos and anarchy.
Give up the shadow of worthless rights for the substance of real advantage. A diplomacy which thinks in legalistic and propagandistic terms is particularly tempted to insist upon the letter of the law, as it interprets the law, and to lose sight of the consequences which that insistence may have for its own nation and for humanity. Since there are rights to be defended, such a diplomacy thinks that the issue cannot be compromised. Yet the choice which confronts the diplomat is not between legality and illegality, but between political wisdom and political stupidity.
“Demonstrations” against war, economic abuses, and racial inequities are healthy; and it is a credit to both democracy and capitalism that no attempt has been made to suppress nonviolent critiques. However, I cannot admit the claim of many young enthusiasts that every person has a right to reject any law that his conscience finds unacceptable; no government could subsist on such a basis; the judgment of the community; as expressed by its elected legislators, rightly overrides the judgment of the individual. The individual may still carry legitimate protest to active disobedience, but he should take his punishment as due process of the law.
Man, to become civilized, must be subjected to a system of national law possessing superior force, just as states, to be civilized, must be subjected to a system of international law possessing superior force. So we must relinquish the childish dreams of unfettered liberty that inspired many of us in our youth, and that still enthrall some college students in America and abroad.
A closed court is a very rare thing. That is a huge part of the motivation behind why companies prefer to settle out of court (besides the intense costs).
Courts need to be open in order to ensure that justice is served.
There is no single criterion of justice, but that different societies place different degrees of emphasis on its various aspects.
Hiện nay, hầu hết các nước trên thế giới đều có 2 nhánh là thực thi luật pháp theo con đường hành chính và thực thi theo con đường hình sự. Hành chính và hình sự là 2 cấp độ khác nhau và không thể đồng thời áp dụng lên 1 hành vi vi phạm.
Bản chất của luật pháp phản ánh bản chất của Nhà nước đặt ra nó. Nhà nước kiểu nào thì pháp luật kiểu đó. Chính vì vậy, luật pháp có tính chất giai cấp. Luật pháp còn có tính xã hội vì nó chứa đựng những chuẩn mực chung được số đông trong xã hội ủng hộ. Luật pháp có tính dân tộc, nghĩa là phù hợp với truyền thống, tập quán, giá trị đạo đức của các dân tộc trong đất nước. Bản chất này cho phép luật pháp gần gũi với dân chúng, được dân chúng ủng hộ, do đó mà có hiệu quả điều chỉnh lên các quan hệ xã hội. Luật pháp có tính thời đại, nghĩa là phù hợp với trình độ phát triển kinh tế của đất nước, có khả năng hội nhập với luật pháp quốc tế.
Pháp luật thể chế hoá chủ trương, đường lối, chính sách của lực lượng cầm quyền; là vũ khí chính trị của lực lượng cầm quyền để chống lại sự phản kháng, chống đối trong xã hội.
Pháp luật và Nhà nước là 2 bộ phận của kiến trúc thượng tầng, luôn có mối quan hệ chặt chẽ với nhau. Nhà nước là tổ chức để thực hiện quyền lực chính trị của đảng cầm quyền, nhưng quyền lực đó chỉ có thể được thực hiện và có hiệu lực trên cơ sở thực hiện pháp luật.
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes “deserving” being impacted upon by numerous fields, with many differing viewpoints and perspectives, including the concepts of moral correctness based on ethics, rationality, law, religion, equity and fairness. Consequently, the application of justice differs in every culture.