Introduction:
In a society thousands types of people live together and they want to behave in thousands of ways. But it is not correct way to live if everyone fulfills their free will. It can cause serious problem to others. Some specific set of rules and regulations are very necessary to avoid nuisance. And from this point rule of law begin. The rule of law is essential in any society where human rights need to be protected. It acts as a safeguard for human rights. Law is a system of rules and imposed by a set of institutions. It serves as a major social moderator of relations between people and shapes politics, economics and society in various ways.
Rule of law is a general legal maxim[1] according to which decisions should be made by applying known principles or laws, without the intervention of discretion in their application.[2] This maxim is intended to be a safeguard against arbitrary governance. “Arbitrary” signifies a judgment made at the discretion of the arbiter, rather than according to the rule of law.[3]
Currently it is very difficult to implement. So, now it is time to consider this problem as a challenge. One of the major issues is to maintain law and order in the world, a peaceful environment for the progress of the people. It will make sure that power is going to be used in a fair and reasonable way.
The Rule of Law:
The rule of law does not have a precise definition, and its meaning can vary between different nations and legal traditions. Generally, however, it can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions. In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.
The rule of law is a legal maxim according to which no one is immune to the law. The phrase has been used since the 17th century, but the concept can be traced to ancient Greece. Aristotle put it this way: “law should govern”. In ancient Roman law, a sovereign was personally immune, but people with grievances could sue the treasury.[4]
One way to be free from the rule of law is by denying that an enactment has the necessary attributes of law. The rule of law has therefore been described as “an exceedingly elusive notion”[3] giving rise to a “rampant divergence of understandings”.[5]
At least two principal conceptions of the rule of law can be identified: a formalist or “thin” and a substantive or “thick” definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.[6]
4. Luban, Law’s Blindfold, 23
5. From Old English lagu “Words of Mel”; legal comes from Latin legalis, from lex “law”, “statute” (Law, Online Etymology Dictionary; Legal, Merriam-Webster’s Online Dictionary)
6. Robertson, Crimes against humanity, 90
Origin
The word rule7 comes from “regle” and law8 from “lagu” roughly translating to “supremacy of law”9.The term ‘Rule of Law’ is derived from the French phrase ‘La Principe de Legality’ (the principle of legality) which refers to a government based on principles of law and not of men. In this sense the concept of ‘La Principe de Legality’ was opposed to arbitrary powers.10
The concept of rule of law was first written about by the Greek thinkers. Plato, in his work “The Laws” writes “In any great state, the law must be the ultimate sovereign, and not any person whatsoever” exhibiting a clear understanding of rule of law. It is gradually developed through different interpretations either as a philosophy or political theory by different philosophers like Aristotle, Cicero, Karl Marx, Joseph Raz and A.V. Dicey. Aristotle, in “Politics” says that “the legislator’s task is to frame a society that shall make the good life possible”.11
In the modern period, John Locke the profounder of one of the Social Contract Theories laid down several principles of the rule of law in the course of his work.
Firstly, the same laws must exist for “for the favorite at Court, and the countryman at plough”.
Secondly, laws should be designed for the good of the people.
Thirdly, the state cannot raise property taxes without the consent of the people.
Fourthly, the legislative may not transfer law making power to any other body.
7 A principle or condition that customarily governs behavior.
8 A set of principles, rules, and standard of conduct that have general application, were developed by a legitimate authority for the society, trigger penalties when they are violated.
9 Prof. P. Surianarayanan, Development of Rule of Law (1st ed., Madurai: Madurai Kamraj University, 1983) at 3.
10 Massey, I.P. Conceptual objections against the Growth of Administrative Law. Administrative Law, 5th Ed; Eastern Book Company: 34, Lalbagh, Lucknow-226001, India, 2001;21.
11 Supra note 1, at 6-8.
The basic function of rule of law is to ensure justice, peace and order in society. It has the two following aspects:
i) Substantive Content: This implies that the content of law should reflect the basic standards of society, exhibit regularity and consistency and place the human personality above all else. It should include freedom from government intervention and right to minimum material means. Thus the obligation of citizens to obey the law should arise out of its morally justifiable nature.
ii) Procedural Machinery: This includes legal institutions, procedures and traditions all of which must pay attention to the judgment of individuals and the values of society. The legislature, executive, judiciary and the legal profession have a part to play.12
Criticism of the Rule of Law:
There have been a number of criticisms of the concept of rule of law. One is that by focusing on the procedures used to create the law, one loses sight of the content and consequences of those laws. Another, which has been advised by critical theorists, is that the concept of rule of law is merely a method by which the ruling classes can justify their rule, because they are in charge of determining which laws get passed or not (in other words, they argue that the rule of law is in reality the rule of those people who have the power to make or change laws).
Yet another criticism focuses on the emphasis that rule of law places on the prevention of arbitrary action, while giving legitimacy to all actions performed “according to the law”, even when most people would oppose those actions.
As evidence to support these objections, the following example is often given: if an authoritarian government commences legal action against a political dissident, that action may not be arbitrary or made by personal whim, and it may be made exactly according to the law, but it may still be objectionable.
12 N. S. Marsh, International Commission of Jurists – The Rule of Law in a Free Society (Switzerland, 1959) at 191.
Challenge of the Rule of Law:
The rule of law is illusory. There are always some degraded ones who use the rule of law to achieve their own profit. The rule of law is lack of fairness. Most of time, it is found that law that made by human is not equal. Sometimes powerful person get release from the punishment, but weaker one has to face everything. Sometimes law does not give proper punishment to the criminal such as it does not permit to kill a killer for his crime. On the other hand, God made law is always equal to all.
According to the rule of law “all citizens are equal before the law, shall exercise the same rights and shall be subject to the same duties.’’13
The act of President Horta is contrary to the above section. If every citizen starts investigating their own case and starts resolving disputes face to face with the alleged, then what is the purpose of the judiciary and the law? If they coerce suspects to give up information about whether they have committed a crime or not by directly questioning them or their family members, then what purpose would the law of evidence serve? This act is also an abuse the rule of law.
13. Section 16, act of President Horta
Conclusion:
There are many challenges against the rule of law. Most significant challenges are how to secure the rule of law from violation and proper implementation. The rule of law, are very important contemporary principles and common values. They are also unified and without one the others cannot fulfill their mission properly. The rule of law covers not only the implementation of laws and international agreements but also the independence of the judiciary, the impartiality of judges in their decisions and the suitability of the prosecution process of the rules and regulations.
In Bangladesh there are no proper implications of law, which is very crucial as it will protect the rights of minors, decrease discriminations and increase the transparency of public and judicial offices. Not only people will get benefited by law but also administration will be authorized by law properly.
Bibliography
1. Halim, Abdul; Constitution, Constitutional law and politics: Bangladesh Perspective; 3rd Edition.
2. Dicey, A.V, Introduction to the Study of the Law of the Constitution, 10th edition.
3. Bari, M. Ershadul, Rule of Law and Human Rights ( University of Dhaka, Law journal)
4. Ahmed, Justice Amin, Judicial Review of Administrative Action.
5. Philips, O’Hood, Constitutional and administrative law, 10th edition
6. Jennings, Ivor, The Law and the Constitution, 5th edition.
7. Barnes, Dworkin and Richards (2000), “Law for Business”, 7th Edition, McGrawhill.
8. Tucker and Henkel (1992), “The Legal and Ethical Environment of Business”, WEST
9. Aron (1989), “Liberty and Justice for All”, Westview.
10. Azizul Hoque (1980), “The Legal System of Bangladesh”, Bangladesh Institute of Law and International Affairs, Asiatic Press.
11. Conry, Ferrera and Fox (1986), “The Legal Environment of Business”, 4th Edition, WCB.
12. Corley, Reed and Shedd (1990), “The Legal Environment of Business”, 8th Edition, McGrawhill.
13. Brison and Sinnott- Armstrong (1993), “Contemporary Perspectives on Constitutional Interpretation”, Westview.
14. Clark and Kinder (1991), “Law and Business: The Regulatory Environment”, 3rd Edition, McGrawhill.
15. http://www.strike-the-root.com/51/ross/ross3.html
16. http://www.fff.org/freedom/0892a.asp
17. http://www.ictj.org/en/news/coverage/article/2634.html
18. http://en.wikipedia.org/wiki
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[1] A Legal Maxim is an established principle or proposition
[2] Black’s Law Dictionary page 1196 (Fifth Edition, 1979):
[3] Online Etymology Dictionary: “‘deciding by one’s own discretion,’ from L. arbitrarius, from arbiter (see arbiter). The original meaning gradually descended to ‘capricious’ (1646) and ‘despotic’ (1642).”