Basic Principles of Rule of Law

Belgrade Law Faculty Master Course on Comparative Constitutional Law Prof. Thomas Fleiner October 31 to November 16 2011

Prof. Thomas Fleiner Class No 3 Rule of Law

Rule of Law Rechtsstaat Etat de Droit

What means Rule of Law?

Who has to obey the Rule of Law?

International Community Rule(s) of Law Rule of Laws

Rule(s) of Law(s)

States? Citizens?

Human beings?

What questions need to be asked?

If one wants to know how the rule of law is to be applied in the legal system one has to give An answer to the following questions: 1. What are the sources of law and justice? 2. What kind of courts protect citizens from the whim of authorities and administration? 3. Which remedies are available to individuals in order to protect themselves against illegal actions or decisions of authorities?

4. What are the powers and jurisdiction available to courts in order to protect peoples against the misuse of their might? 5. Independence of the courts, nomination, election re-election, impeachment, salaries and education 6. What are the essential criteria‘s courts decide such cases?? 7. What are the rights and obligations of the parties within judicial procedures?

Different understanding Of rule of law Common Law USA:

European continent Hobbes: Big Bang

„That men are ruled by Law and not by men“ Rechtsstaat Etat De Droit

Etat Légale Principle of legality

Constitution: Protection of Individual rights

Foundation of law and justice

Hierarchy: To whom God gives an office it Gives him her the brain to decide General will, democracy, voice of the People is the decision of God? Who wins the case has right versus Who has right should win the case

Human beings have failures

Bases of administrative jurisdiction Control of public law Ultra Vires v. versus legal compliance

Authority of administration European Convention on Human Rights

Two types of administrative jurisdiction

Common Law

Civil Law

Remedies

Administrative act

Parties

Ministre Juge

Contempt of Court

quash

Reasonableness Due Process Natural Justice

Proportionality Etat légale

Pre-constitutional

Rule of Law and Justice

Legitimacy

International Constitutional Legal? By executive?

Indepen dance

Status of courts Jurisdiction Access to. justice

remedies

Legitim. Fact finding impartial

Position of Judges

education

attorneys

education

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Constitutional Disputes in the UK in 17th century From Magna Charta to Habeas Corpus King in Parliament versus Common Law

Separation of powers and Rule of Law

American development Fundamental rights against colonialism Inalienable rights Constitutional Jurisdiction

France

Human rights have to set up new society Sovereignty of the Nation Limits of separation of powers Nation as fountain of justice

Rule of Law versus general will