The United States and the Rule of Law in International Affairs
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The rule of law is not just about written precepts. It depends on the vigilance and character of individual men and women who faithfully implement it. The founders of our nation well understood the challenge. First, they fought a war on their own soil to break free from rule by a foreign monarch. Then they operated for a decade under the Articles of Confederation, with a weak central government that proved incapable of meeting its obligations.
So, in , the Constitutional Convention met in Philadelphia to establish foundational rules for a new central government. The system protects against the concentration of power by allowing each branch to check and balance the others. When Benjamin Franklin was walking home from the Convention, a woman named Elizabeth Powel asked him what type of government the Founders created.
Some people think that politicians are responsible for keeping the republic. But Franklin spoke to an ordinary citizen — a woman who did not even have the right to vote. One indicator that we are faithfully enforcing the law is when we accept that it requires an outcome we dislike. We respect the result because it is the result of a fair process — an objective analysis of the facts and a rational application of the predetermined rules. An independent judiciary is a central pillar of our system. Our federal judges, by design, do not defer to popular will.
They do not run for election. They do not answer to the executive branch. Nor are they beholden to the legislature.
Their duty is to say what the law is, independently and impartially. The judicial branch is independent because we accept its final rulings, even when we disagree with them.
The judiciary serves as a check on the other branches, not a subordinate. American institutions and the people who compose them sometimes fall short of our ideals. No system is infallible. But at its core, our society fundamentally respects the rule of law, by which we mean a system that is just and protective of human freedoms. Not all nations share that concept. As we seek to build bridges with foreign adversaries, it is important for us to understand the different visions that underlay their legal systems.
What is the Rule of Law
The party controls the appointment of all judges and even dictates some of their rulings. Daily practice in the courts is also a study in contrasts. In our courts, the presumption of innocence is perhaps the most important safeguard of individual liberty. When our government makes an allegation of wrongdoing, we need to prove it.
Governance and Rule of Law | Center for Strategic and International Studies
We must present evidence that satisfies the rules governing admissibility. We need to call witnesses who remain credible when subjected to vigorous cross-examination.
The defendant gets an opportunity to present his own evidence and witnesses. And the presumption of innocence is overcome only if we prove our case to the unanimous satisfaction of the judge and a jury of 12 random citizens. If even one juror is unconvinced, the defendant prevails.
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Government officials may sincerely believe that a defendant is guilty, but their belief is irrelevant. Investigators and prosecutors do not get to decree which facts are true. In contrast, the Chinese system effectively presumes guilt when a defendant stands charged with a crime. Moreover, the presumption is all but irrebuttable. Laws face in two directions: i they impose requirements for ordinary citizens to comply with; and ii they issue instructions to officials about what to do in the event of non-compliance by the citizens. Laws that are secret and retroactive so far as i is concerned may still operate effectively in respect of ii.
So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: they require that citizens be put on notice of what is required of them and of any basis on which they are liable be held to account. The requirement of clarity is also important in this regard. Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly. True, much modern law is necessarily technical Weber : —95 and the lay-person will often require professional advice as to what the law requires of him.
It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires.
Foreign Relations Law: An Overview
In the nineteenth century, Jeremy Bentham ch. We should complement this list of formal characteristics with a list of procedural principles as well, which are equally indispensable to the Rule of Law. We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve I have adapted this list from Tashima :. What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them such as it was , and to be represented so that their own side of the story could be explained.
No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded. It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing. Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase.
Some procedural requirements are also institutional in character: there must be courts and there must be judges whose independence of the other branches of government is guaranteed. This side of the Rule of Law is connected with the constitutional principle of the separation of powers. That principle is sometimes justified simply on the ground that it is unhealthy for power to be institutionally concentrated in society.
But it also has a Rule of Law justification inasmuch as it assigns distinct significance to distinct stages in the making and application of laws Waldron They do not think it is possible to sharply separate our political ideals in the way Raz seems to suppose. Generality—proceeding according to a rule—is often said to contain the germ of justice Hart ch. And, stability, publicity, clarity, and prospectivity indicate a pretty fundamental connection between the Rule of Law and the conditions of liberty.
We have to be careful, however, to distinguish between allegedly substantive requirements of the Rule of Law and specification of the deeper values that underlie and motivate the ideal even in its formal and procedural requirements. Some jurists believe that there is a special affinity between the Rule of Law and the vindication and support of private property.
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The commitment to such processes is the essence of the rule of law. Cass But they think nevertheless that a contingent connection between the Rule of Law and private property can be established by showing that the forms of regulation defenders of private property are concerned about tend to be forms of regulation that the Rule of Law, even on a more austere conception, prohibits. What was missing was the substantive component of the rule of law.
The process by which the laws were made was not fair only whites, a minority of the population, had the vote. And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. World Justice Project 9.
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Those considerations, he said, are better understood as independent dimensions of assessment. A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed. Bingham And many liberals are inclined to follow them in that.
But this is not the only possibility. Many associate the Rule of Law with a presumption of liberty or the principle of human dignity.