The rule of law applies not only within national communities, but increasingly also among themselves, but in this area its application remains under-theorized (for a useful discussion, see Crawford 2003). Much of the work that has been done on the international rule of law simply uncritically adopts the views of those at the national level that the rule of law requires determination, clarity and predictability (see Chesterman 2008). However, this can be misunderstood when we talk about states and not individuals as legal entities (Waldron 2011b). States are much better informed of their legal requirements than men and women in society, as they are parties to treaties and practices that establish international law. (Perhaps, however, this point does not apply to the same extent when we consider the dark depths of customary international law.) No human being, society or association of persons has any other right to obtain special and exclusive benefits or privileges different from those of the community than those resulting from the consideration of services to the public; And since this title is not hereditary in nature, nor transferable to children, descendants or blood relatives, the idea of a man born as a judge, legislator or judge is absurd and unnatural. [32] The norms of constitutional economy can be used during the annual budget process, and if this budgeting is transparent, the rule of law can benefit. The availability of an effective judicial system that can be used by civil society in situations of unjust public spending and the confiscation of funds pre-approved by the executive is a key element of the success of the rule of law. [88] But the rule of law is not just about the government. It also requires citizens to respect and respect legal standards, even if they do not agree with them.

If their interests conflict with those of others, they should accept legal provisions on their rights and obligations. In addition, the law should be the same for everyone, so that no one is above the law and everyone has access to the protection of the law. The access requirement is particularly important in two respects. First, the law should be epistemically accessible: it should be a body of proclaimed norms of public knowledge so that people can study, internalize, understand what it requires of them and use it as a framework for their plans and expectations and to settle their differences with others. Second, legal institutions and their procedures should be available to ordinary citizens to enforce their rights, settle their disputes and protect them from abuses of public and private power. All this, in turn, requires the independence of the judiciary, the accountability of government officials, transparency of public affairs and integrity of judicial proceedings. My action can hardly be considered subject to the will of another person if I apply his rules for my own purposes, how I could use my knowledge of a natural law, and if that person is not aware of my existence or the particular circumstances in which the rules will apply to me, or the effects, that they will have on my plans. (Hayek 1960: 152) (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. As with any part of the Constitution, the founders understood that words on paper have only limited power. They knew that the rule of law ultimately depends on people who have the courage, autonomy and wisdom to make prudent decisions and who have enough tolerance for others to let them live as they see fit. Some rules of procedure are also institutional in nature: there must be courts, and there must be judges whose independence from other branches of government is guaranteed. This aspect of the rule of law is linked to the constitutional principle of the separation of powers. This principle is sometimes justified simply by the fact that it is unhealthy for power to be institutionally concentrated in society. But it also has a constitutional justification, as it attaches particular importance to the different phases of law-making and implementation (Waldron 2013). Similar arguments were made by state Supreme Court justices after 1776. However, their attempts to overturn legislative decrees through the power of judicial review were largely unsuccessful, as most early state constitutions, such as the English Constitution, followed the doctrine of legislative supremacy.

Laws passed by state legislatures were supposed to conform to state constitutions. But there was no provision calling for the primacy of the state constitution over laws passed by the legislature in case judges found a law to be in conflict with the state constitution. Thus, the absence of a primacy clause in these state constitutions has rendered the power of judicial review weak and ineffective. The „formal“ interpretation is more widespread than the „substantial“ interpretation. .

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