The rule of law

In modern philosophy of law, the rule of law is opposed to the idea that individual officials or authorities can be above the law or have overly broad powers and thus exercise arbitrariness. The rule of law doctrine requires that the rules be published, stable and predictable in their application. It requires the accessibility of the justice system and its independence from the executive and legislative branches of government so that judges can make decisions only on the basis of facts and laws ^[3] . In modern versions of the doctrine, it is also argued that members of society should be able to participate in the creation and change of laws that regulate their behavior.

There are two main concepts of the rule of law: formal and substantive (“thin” and “thick” in the English tradition; associated with the theories of legal positivism and natural law , respectively). The formal interpretation of the rule of law does not make judgments about the justice of the norms themselves, but determines the procedural attributes that the legal system should have. This approach seeks to isolate the effectiveness and predictability of the system from ethical questions about its responsibility for the result. Substantive interpretations of the rule of law make demands on the content of laws and explicitly include fundamental human rights , which, according to these concepts, follow from the highest unwritten principles of legality, morality and justice. Such interpretations significantly increased their influence after the Nuremberg process , which recognized the leadership of Nazi Germany as criminals despite their formal compliance with the laws, as well as after the human rights activities of Mahatma Gandhi and Martin Luther King . In order not to confuse the formal interpretation with the substantive, the Parliamentary Assembly of the Council of Europe recommends the term “rule of law” for the former, and the rule of law for the latter ^[4] .

According to the definition given in 2004 in the report of the UN Secretary General “The rule of law and transitional justice in conflict and post-conflict societies”, “ The rule of law is a concept that is the very essence of the UN mission. We are talking about this principle of management, according to which all persons, institutions and structures, public and private, including the state itself, operate under the laws that have been publicly adopted, are equally enforced and independently implemented by judicial bodies and are compatible with international human rights norms and standards ^[5] ”.

Ukrainian lawyer A.N. Kostenko, based on the theory of social naturalism, proposed to interpret the principle of the rule of law as the "principle of the rule of laws of natural law."

The term has been used since the beginning of the 17th century (a petition to Jacob I from the House of Commons in 1610; some time earlier this idea was voiced in a decision of the Court of General Litigation ^[6] chaired by Edward Kok , although the king himself considered such a view of his power to be "treason"). It should be noted that the concept itself is much older and is far from always connected with ideas about democracy in the modern sense. For example, Aristotle insisted that “the law should rule” ^[1] . Similar views were held by Cicero , who said: “We are all slaves of the laws” ^[7] . The law was absolutized by the ancient Chinese "legists" —the adherents of the school of fajia , who, while in power, established in the state, as a rule, very severe punishments for numerous misdemeanors. However, from the point of view of the legists, the law should have been not a means for the people to curb rulers, but rather a means for rulers to rule the people ^[8] . On the contrary, in the 13th century, Thomas Aquinas argued that it is the rule of law that is the “natural order” established by God ^[9] .

The idea that the freedom of action of persons in power should have legal restrictions is characteristic of the Anglo-Saxon legal tradition (in the XVIII century - John Locke , Samuel Johnson , Thomas Paine , John Adams ). In many respects, despite some differences in accents, the rule of law is close to the notion “ rule of law ” developed in the Romano-Germanic legal philosophy ( Rechtsstaat , fr. État de droit ). The use of one or another terminology is mainly due to differences in legal customs and their history ^{[10] [11]} .

The most ancient source in which the idea of ​​the subordination of power to the law is affirmed is the Torah (part of the Holy Scripture ) Moses , according to the traditional point of view of the XIII century. BC er ^[12] :

When he (the king) sits on the throne of his kingdom, he must write off for himself the list of this law from a book kept by the priests of the Levites, and let him be with him, and let him read it all the days of his life in order to learn to fear the Lord God his, and tried to fulfill all the words of this law and this decree; so that his heart will not be lifted up before his brothers, and that he will not shy away from the law either to the right or to the left, so that he and his sons in the midst of Israel will stay on his kingdom for many days ^[13] .

In the Middle Ages, this idea receives the force of state law in the non-Jewish world, when Holy Scripture also becomes the supreme source of truth in it. According to this source, “the law (of God) is the truth” ^[14] . This law was the general basis of all political and legal doctrines of the Middle Ages ^[15] . But even earlier, during the Christianization of the Roman Empire, in 390, the Christian emperor Theodosius I was already forced to obey the law and bring public repentance ^[16] .

In 1215 , the English king , recognizing the primacy of Christ ^[17] , signed the Magna Carta Charter , establishing the principle of the subordination of power to law ^[18] . In the same century, court judge Henry Bracton (born Henry de Bracton , died in 1268) systematized for the first time the basic norms of English law. His work De legibus et consuetudinibus Anglia (“On the laws and judicial regulations of England”) played a crucial role in the formation of medieval England ^[19] . He argued that "the king should not be under a man, but under God and the law, because the law makes the king a king" ^[20] .

And in the future, legislative acts of medieval Europe regulated the power of monarchs, relying on the primacy of Christ and the rule of Holy Scripture. So in 1221 - 1225 . Judge Eike von Repkov compiled the Saxon mirror , the oldest legal collection in Germany, which served as the basis for the Swabian mirror ^[21] and for the right of the city of Magdeburg (see Magdeburg city law ), from where it spread to Holland, Livonia and Poland ^{[22] [23]} .

In 1525 , the manifest of the Reformation was adopted by the peasants of Swabia Twelve articles ^[24] .

In 1571 , 39 articles were approved by the Parliamentary Act in England (see Art. 37).

The Bill of Rights of 1689 further restricted the power of the English monarchs ^[25] and declared the rights and freedoms of subjects ^[26] .

So, relying on the name of Christ and the height of his law, the idea of ​​the rule of law gained the power of state law in medieval Europe, and the absolute monarchy inherited from Roman law turned into a monarchy limited by laws ^[27] .

Subsequently, the normative legal acts of democratic states ceased to recognize the primacy of Christ and the supremacy of Holy Scripture. However, these states did not cease to build their legislation on the principle of the rule of law, but continued the development of this principle in their lawmaking, laying it the basis of the modern world order ^[28] .

The World Justice Project publishes an annual index of countries of the world ^[29] , which includes 8 indicators: limiting the power of the state, lack of corruption, order and security, fundamental rights, open government, law enforcement, civil justice, and criminal justice. In 2012, the countries of Scandinavia , Finland, the Netherlands and New Zealand took the top positions in the rating on almost all indicators (in terms of points, Sweden scored 7.12 out of 8). Russia's position depends on the indicator ^{[30] [31]} and varies between 65th and 92nd place in the general list of 97 countries, between 15th and last place among 21 countries of Eastern Europe and Central Asia, and between 21st and 29th place out of 30 countries in their income group.

• Legality
• Constitutional state

• Vishnevsky G. A. The Rule of Law and the Problems of its Ensuring in the Process of Judicial Enforcement // Law and Politics. 2012. № 2 (146). Pp. 294-299.
• Daisy A. Century Basics of public law in England. Introduction to the study of the English constitution. 2nd ed. SPb .: Type. Comrade I. D. Sytin, 1907.
• Dvorkin R. About rights seriously. - M .: ROSSPEN, 2005. - ISBN 5-8243-0569-2
• Morozova L. A. Theory of State and Law. 4th ed. M .: Eksmo, 2010. 31.2. Signs of the rule of law
• Nesterovich V.F. The supremacy of law and human rights rights on the time of occupation of Ukraine / V.F. Nesterovich Science Notes NaUKMA. 2017. T. 200. Legal sciences. Pp. 85-92.
• General Theory of Law and the State / Ed. Lazarev V.V. 3rd ed. M .: Yurist, 2001. 7.3. The impact of the right to the state. Principle of connectedness of state law (rule of law)
• Rolls J. Theory of Justice. M .: LKI, 2010. ISBN 5-382-01051-X
• Fuller L. Moral rights. - M .: Irisen, 2007. ISBN 978-5-91066-011-8 (err.)
• Hayek F. Law, Legislation and Freedom: A Modern Understanding of the Liberal Principles of Justice and Politics. - M .: IRISSEN, 2006. ISBN 5-91066-010-1
• Hart G. L. A. The concept of law. SPb .: Publishing House of St. Petersburg State University, 2007. ISBN 978-5-288-04211-9
• Allan TRS Rule of Law (Rechtsstaat) (inaccessible link) (English) // Routledge Encyclopedia of Philosophy. London: Routledge, 1998. See also Routledge Encyclopedia of Philosophy in Google Books (eng.)
• Rule of law (Eng.) // West's Encyclopedia of American Law. Eagan, Minnesota: West, 1997.

• Protasov VN Theory of Law and the State. Problems of the theory of law and the state: questions and answers. M .: New Lawyer, 1999. Ch. 52. The rule of law and law.
• The rule of law and the problems of its security in law enforcement practice (inaccessible link) / ed. Novikova E. V. - Moscow: Statute, 2009. - 608 p. - ISBN 978-5-8354-0616-6
• United Nations and the rule of law
• WJP Rule of Law Index | The World Justice Project (eng.)