Understanding the Rule of Law: Principles and Requirements

Rule of Law: Requirements and Features

According to Article 16 of the Declaration of the Rights of Man and of the Citizen (DDHC): "A society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution."

On this historical basis, we can analyze the requirements of the rule of law. Professor Elias Diaz, in his famous book, "Democratic Society and Rule of Law," outlines four of these requirements:

1. Rule of Law

The rule of law replaces the rule of men with the government of laws. This is a consequence of the desire to "depersonalize" the exercise of political power. As a government of laws, it follows that all public authorities, not only citizens, are subject to the law. It is not just any kind of law but that which is formally made by the competent body, the Parliament, which represents the general will of the people. Thus, the law is an expression of popular will. Not every law is valid (against extreme legal positivism), but only those from a democratically legitimized Parliament. The principle of the rule of law corresponds to the kind of legitimacy that Max Weber called rational-democratic (as opposed to the other two types: charismatic and traditional).

Today, most democratic countries are constitutional, so the principle of the rule of law becomes the rule or supremacy of the Constitution.

2. Division of Powers

We refer to it as explained when speaking of Montesquieu and the provisions of Article 16 of the DDHC. This is a rational technique to ensure that power does not become absolute. This is done by dividing power among three different "powers," which are attributed to three different bodies. Each of them has a specific competition or function. Thus, while the functions are divided, they merely interact with each other. Each of these three branches has its own field of activity, which cannot be entered by either of the other two. This prevents all state powers from being vested in one body or organ of power. Initially, this was understood in a very rigid manner. The separation between them was absolute. Later, the principle became more flexible, and some authors, referring to this principle of collaboration, prefer to speak of powers. In fact, it can also be interpreted as the existence of three different state functions or tasks assigned to three different organs that work together but, at the same time, limit each other. This is the technique of "checks and balances."

A question of some interest is which of the three powers is predominant. In good democratic theory, it should be the legislature, for at least two reasons: 1) because it is in Parliament where the immediate representation of popular interest is located, and 2) because the legislature is responsible for making laws, which, as such, are general legal rules that provide for the plurality of situations of all types that can occur in society and seek their satisfaction or response. Parliament, therefore, makes key decisions; the government then implements and enforces them, and judges interpret and apply them in particular cases. While this is so in theory, in practice, the legislature has been displaced in its predominant role by the executive. This is explained by a number of reasons: 1) today, the executive makes legislative measures by means of Decree-Law; 2) the complexity of modern societies requires quick answers and solutions to problems, and this speed can only be achieved by an organ that is not very numerous and respects the principle of unity of direction, such as the government; 3) in most democratic countries, Parliament is being reduced to an echo chamber of decisions made previously either in the party or the government.

3. Principle of Legality of Public Administration

This involves the submission of the Public Administration to the law. It is a consequence of the principle of the rule of law. To ensure compliance with this principle, a system of control and responsibility of the Administration is established through judicial process. There is a whole set of resources, called administrative litigation, which may be used against the decisions and actions of the Public Administration.

4. Recognition and Guarantee of Fundamental Human Rights

This fourth condition is so important that some authors consider that the other three exist in relation to it. It is not enough, of course, to recognize them in a fairly exhaustive list, but it is necessary to establish a complex system of guarantees that truly protect them.