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Rule of Law Legal Certainty
11
November
2022

30 See note 10 above, Dworkin, 239-240. For Dworkin, intersubjectivity is expressed in the political morality of the legal community that guides jurisprudence. Google Scholar Strengthening the Rule of Law involves respect for the norms of international law, including the use of force, and the recognition of the primary responsibility of states to protect their populations from genocide, crimes against humanity, ethnic cleansing and war crimes. The rule of law is a central element of the humanitarian and human rights agenda; is essential for understanding and addressing the causes of displacement and statelessness; and forms the basis of the humanitarian protection regime. Finally, an analytical question. What is the relationship between the rule of law and the rule of law? It can be argued – arguably controversially – that the two need to be brought together (see Waldron 2008 and Simmonds 2008). The concept of law could be understood as encompassing the fundamental elements of legality, although that identification seems all the less plausible the more substantial the concept of the rule of law. For this reason, a system of government does not count as law if it does not have the characteristic forms and processes that we associate with legality. Otherwise, we lose the sense of the institutional specificity of law as a way of governing a society. We have seen above that Lon Fuller (1958 and 1964) envisaged a link in this direction. The same goes for Ronald Dworkin in his later work.

Dworkin (2004) asked us to examine a situation in which judges and lawyers faced difficult questions of interpretation or difficult dilemmas arising from multiple sources of law. He said that in such cases, we could say that what is required by law may be different from what is required for legal reasons. This is a familiar separation (even if Dworkin thought it was narrower and more blurred than most right-wing positivists believed). But he said it would make no sense to say that what is needed as a matter of legality or respect for the rule of law is different from the legal solution in this case. To find the legal solution, we must approach the various legal and policy documents in light of our commitment to legality. In U.S. law, the principle of legal certainty is worded as a fair warning and the principle of nullity as vagueness. [11] 86 See note 4 above, 225-226. Tuori warns that there is a danger that concepts such as the rule of law and legal certainty will be “inflated” with anything perceived as positive. What happens then is that these concepts lose their status and instead become “rhetorical balloons”.

See also notes 33 and 220 above. It could be argued that such reasoning would also achieve a higher degree of predictability in legal decision-making, as transparency opens the interpretive process to criticism and genuine dialogue between legal actors in the EU legal community. Google Scholar As attractive as it may seem in an abstract way, it has shown a certain naivety regarding the legal situation of state officials. Public servants are and often should be treated differently from ordinary citizens before the law: they need certain additional powers and they must be limited by additional restrictions so that they can be held accountable for the actions they carry out on behalf of the community. For ordinary mortals, the rule of law creates a presumption in favor of freedom: anything that is not expressly forbidden is allowed. But for the state and its officials, we might want to work with the opposite assumption: the state can only act with express legal authorization. 73 See footnote 59, 364 above. The CJEU also often refers only to the relevant sources of law, principles and legislation, without opening these arguments by explaining why they are relevant and what their content is. Google Scholar Others, such as Richard Epstein (2011:10), accept that “the rule of law .

a concept distinct from private property.” Nevertheless, they believe that a contingent link can be established between the rule of law and private property by showing that the forms of regulation that concern defenders of private property tend to be forms of regulation that prohibit the rule of law, even with a stricter conception. Although many jurists follow Raz 1977 and believe that the rule of law is a purely formal/procedural ideal, others believe in adding a more substantial dimension. They do not believe that it is possible to clearly separate our political ideals, as Raz seems to assume. At least the formal/procedural aspects generate some momentum in a substantive direction. It is often said that generality – proceeding according to a rule – contains the seed of justice (Hart 1961: chap. 8). And stability, publicity, clarity and foresight indicate a fairly fundamental link between the rule of law and the conditions of freedom. However, we must be careful to distinguish between the supposedly substantive requirements of the rule of law and the specification of the deeper values that underlie and motivate the ideal also in its formal and procedural requirements. 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. 153 (cited from Bingham 2010:38)) In this article, retroactive tax legislation is considered from a broader perspective, namely the modification of (tax) law in light of the human need for (legal) security. The main problem was: what standards should guide the legislator who is prepared to amend the tax law? These standards concern the application of the rules by the legislator, i.e. the introduction, amendment and repeal of legislation. Rules, including legal rules, play an essential role in the human need for security. Law is one of the areas of societies through which we try to defend ourselves against uncertainties in the behavior of others, including government.

Laws that provide legal consequences for taxpayer actions guide and direct taxpayer behaviour. This allows taxpayers to calculate their tax liability and predict the collection behaviour of the tax administration. Taxes are an interference on taxpayers` freedom. The more taxes are levied and the higher the tax burden, the more taxpayers have to plan for their tax obligations. Established laws that provide certainty are a great security for taxpayers` freedom, as the lack of certainty in tax legislation can keep them in the dark about their tax rights and obligations. 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) So we need a baseline of expectations. The best account of the importance of legal expectations was given by the utilitarian philosopher Jeremy Bentham in a book entitled “Principles of the Civil Code”. Expectation, Bentham said, is “a chain that connects our present existence to our future existence.” Fuller acknowledged that this link between legality and justice is temporary.

It was certainly controversial. But whether or not this link exists, he also sought to emphasize that the complete absence of formal criteria of legality could deprive a system of power of its status as law: sometimes situations may be governed by informal social norms, and disputes are more likely to be resolved by substantive law formally promulgated and applied (Ellickson 1994). Opinions differ as to whether this should be seen as something quite different from the rule of law. On the one hand, it looks like a real alternative, and there is little to be gained by adapting its desirable characteristics, such as they are, to the requirements of the rule of law. On the other hand, it has something in common with customary conceptions of law and ideas of the rule of law (such as Hayek`s in 1973), which attempt to separate themselves from enactment and legislation. It is also sometimes said that the rule of law works best when what is applied in a society can be mapped to the standards of fairness and common sense of its members. This makes society`s participation in the integrity and preservation of the law more likely (Cooter, 1997). The closer this mapping gets, the less investment is needed in formal promulgation: ordinary know-how can become a reliable guide to legal knowledge.

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