At the same time, there is concern about the mentality fostered by the overemphasis on the rule of law. In its most extreme form, the rule of law can lead to the ability to think independently of public servants (e.g., judges: see Cover 1975) or ordinary members of a community, making them anxious about uncertainty and distrust of their own judgments or the individual judgments of others (see Henderson 1990). Sometimes it is important, in the interest of clear and courageous moral judgment, not to exaggerate the importance of something being required by law. Other concerns about the mentality fostered by the rule of law include concerns about legalism and the tendency to formalize or overload relationships that are designed to be healthier in more informal terms. It`s not just about legalizing the personal domain; It is also a question of understanding, for example, the damage that can be caused to the relationships between public servants (such as social workers) and vulnerable clients by replacing the introduction of rigid rules to replace relatively informal professional standards (Simon, 1983). One way to learn more about federal laws and regulations is through federal law enforcement agencies. Check out the list below for links to agency pages on popular legal topics. Where there is no federal law, websites offer compilations of state laws on a topic. (2) In the 1970s, Hayek began to rethink all this.

Attention is always focused on the implications of the rule of law for freedom. But now Hayek has begun to wonder whether the texts of clear general legal rules would really provide an appropriate framework for freedom. It is a mistake to believe that “by limiting the judge to apply rules that have already been set out, we will increase the predictability of his decisions.” Articulated rules are “often a very imperfect formulation of principles that people are better able to honor in deeds than to express in words” (Hayek 1973:118). Instead, he preferred a common law predictability model, with principles and solutions emerging from a series of court decisions in an almost evolutionary manner. [1] The development of principles distinguished by their relevance was superior to the deliberate imposition of rules by a legislator, Hayek thought. According to Hayek, the legislative mentality is inherently managerial; it is mainly oriented towards the organization of the administrative apparatus specific to the State; And its expansion into the realm of public order usually means an external projection of this type of management mentality with terrible consequences for freedom and markets. Another point. Whether international institutions themselves – such as the United Nations and its organizations – should be bound by the rule of law remains controversial. This is strange because these agencies are among the most vocal advocates of the rule of law with respect to its application to nation-states. The reluctance here stems largely from an assessment of the importance of diplomatic immunity.

UN officials fear that if they and their agencies are held legally responsible for misconduct of various kinds related to peacekeeping activities, there is a risk that the entire basis for international action will be unravelled. However, the danger is probably exaggerated, and those who make this argument would not tolerate a similar argument in the realm of nation-states for a while. Some theorists distinguish between the rule of law and what they call the rule of law (see, for example, Tamanaha 2004:3). They celebrate one thing and denigrate the other. The rule of law aims to elevate law above politics. The idea is that the law should be above any powerful person and agency in the country. The rule of law, on the other hand, refers to the instrumental use of law as an instrument of political power. This means that the state uses the law to control its citizens, but never tries to allow the law to be used to control the state.

The rule of law is associated with the devaluation of legality by authoritarian regimes, for example in modern China. So we need a basis of expectations. The best account of the meaning 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.” A similar question arises with regard to the use of standards, which have the character of standards rather than rules. (A rule is like a digital speed limit, while a standard is like a standard that requires people to drive at a “reasonable” speed.) Legal systems use both types of standards (Sunstein, 1994); They use standards for cases where the appropriate decision may vary depending on environmental conditions and it seems better to trust the judgment of those facing a particular situation rather than set it in advance. There is an element of respect for the distinctiveness of the individual that is conveyed in the use of a standard. At the same time, the standards allow for less legal certainty, especially if it is difficult for the person trying to comply with the standard to predict how his or her judgment will be perceived by a public servant or court. Hayek suggests that Albert Venn Dicey in the second half of the 19th century. He wrote what he saw as a decline in respect for the rule of law in England.

The rule of law was a proud tradition that distinguished governance in England from both the executive dominance of administrative law in France and the stupid and abstract certainties of paper constitutions in countries like Belgium, etc. For Dicey, the key to the rule of law has been legal equality: discussing what the rule of law requires is partly the product of the fact that the law itself encompasses many things and people prefer different aspects of a legal system. For some, the common law is the epitome of legality; for others, the rule of law means the impartial application of a clearly formulated law; For others, the rule of law is the epitome of a stable constitution that has been rooted in a country`s politics for centuries. When Aristotle (Policy 1287b) opposed the rule of law to the rule of men, he dared to believe that “a man can be a ruler safer than written law, but no safer than customary law.” In our time, F.A. Hayek (1973:72 et seq.) has sought to distinguish the rule of law from the rule of law by identifying the former with something more similar to the evolutionary development of the common law, less constructive and less likely to be deliberately controlled than the adoption of a law. There is also an ongoing debate about the relationship between the law and the mechanisms of government. For some, formal discretion is inconsistent with the rule of law; For others, it depends on how discretion is formulated and allowed. For some, the final decision of a court comes down to the rule of law; For others who are aware of the politics of the judiciary, the decision of the courts (especially a politically divided court) is as much an example of human government as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies). The Constitution of the United States of America: Analysis and Interpretation (commonly referred to as the Annotated Constitution) contains legal analyses and interpretations of the United States Constitution based primarily on Supreme Court jurisprudence.

These ideas claim to bring a certain touch of reality into our discussions about freedom.