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The Concept of the Rule of Law and the European Court of Human Rights$
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Geranne Lautenbach

Print publication date: 2013

Print ISBN-13: 9780199671199

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671199.001.0001

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The Rule of Law Concept

The Rule of Law Concept

(p.18) 2 The Rule of Law Concept
The Concept of the Rule of Law and the European Court of Human Rights

Geranne Lautenbach

Oxford University Press

The rule of law is an essentially contested concept. It is defined in many different manners and debate is also necessary to keep it thriving. The differences concern the question which elements are included into the concept. In all definitions, the rule of law is concerned with the control of public power through law with the aim of protecting the individual. Legality is the core element of the rule of law. First, legality requires government to act on the basis of law. Second, it sets a number of quality requirements to which law must adhere, such as generality and clarity. Legality also requires that the judiciary reviews the legality of governmental acts and provides individuals with access to a fair hearing. In addition, a functional separation of the three powers of government is an inherent element of the rule of law, because it ensures that no one will be a judge in his own cause and that laws are not made with particular cases in mind. The independence of the judiciary is indispensable to the rule of law, seen how it upholds respect for the law. The elements mentioned are formal elements of the rule of law which protect individuals to a certain extent against arbitrary exercise of governmental power. The requirements of legality promote individual autonomy because they allow people to plan their lives. These formal elements of the rule of law are necessary, but not sufficient, to set limits to the substantive contents of law. More inclusive rule of law definitions incorporate human rights protection. Human rights can set substantive limitations on the content of law. Human rights are aimed at protecting the individual from arbitrary power. Besides, procedural rights codify rule of law principles and, as such, are part of the rule of law. Democracy, too, is sometimes understood as an element of the rule of law. Legality then demands law to have a democratic heritage. Conceptually, the rule of law and democracy can be distinguished. In practice, both concepts are inseparable because they are both aimed at protecting the equality and autonomy of individuals. Within European states, it makes sense to see the rule of law in connection with democracy and human rights, because all three concepts are part of the same political tradition of these states. The German Rechtsstaat, the French État de droit, and the UK rule of law concepts must be understood in a comprehensive sense to require laws to have a democratic heritage and remain within the limits of the constitution. At the same time, the balance that is achieved between democracy and the protection of fundamental rights in these states differs.

Keywords:   rule of law, legality, human rights, democracy, German Rechtsstaat, French État de droit, UK law

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