Rule according to higher law

Rule according to higher law

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The rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice. Thus, the rule according to a higher law may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...

, even though acting in conformity with clearly defined and properly enacted legal rules
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

, still produces results which many observers find unfair or unjust.
"Higher law" can be interpreted in this context as the divine
Divine law
Divine law is any law that in the opinion of believers, comes directly from the will of God . Like natural law it is independent of the will of man, who cannot change it. However it may be revealed or not, so it may change in human perception in time through new revelation...

 or natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

 or basic legal values, established in the international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

, – the choice depending on the viewpoint. But this is definitely a Law above the law. And it is in this capacity that it possesses the equal legal value for both the common
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 and civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 jurisdictions, as opposed to natural law which is largely associated with common law. "To recognize the necessary connection between the rule of law as an ideal and well-constructed constitutional government does not and should not be taken to imply that all states can or should mantain the same constitutional structures in practice".

The rule according to higher law is a practical approach to the implementation of the higher law theory which creates a bridge of mutual understanding (with regard to universal legal values) between the English language doctrine of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

, traditional for the countries of common law, and the originally German doctrine of Rechtsstaat
Rechtsstaat
Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German jurisprudence, which can be translated as "legal state", "state of law", "state of justice", or "state of rights"...

, translated into other languages of continental Europe as Etat de droit (Fr.), Estado de derecho (Sp.), Stato di diritto (It.), and Правовое государство (Ru.). The latter doctrine is the product of continental European legal thought which had adopted it from German legal philosophy. Its name can be translated into English as “legal state” or "state of law" or "state of rights" or "constitutional state" – consistently meaning the state in which the exercise of governmental power is kept in check by the higher law. Amartya Sen
Amartya Sen
Amartya Sen, CH is an Indian economist who was awarded the 1998 Nobel Prize in Economic Sciences for his contributions to welfare economics and social choice theory, and for his interest in the problems of society's poorest members...

 mentioned that the legal theorists in ancient India used term of classical Sanscrit "nyaya" in the sense of not just a matter of judging institutions and rules, but of judging the societies themselves.

Examples


Before the Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...

, African American
African American
African Americans are citizens or residents of the United States who have at least partial ancestry from any of the native populations of Sub-Saharan Africa and are the direct descendants of enslaved Africans within the boundaries of the present United States...

s were legally denied equal rights and freedoms pursuant to formally valid codes prescribing the relations between master and slave. Even though these codes were de jure fully suitable for application in legal practice, yet their enforcement by the then U.S. government de facto violated basic human rights of a significant part of the population.

Generally speaking, the occurrence of such "justly enacted unjust laws" fully depends on the stance taken by the country's political leadership towards the rule of law principle.

In some countries, the political leaders assert that the rule of law is purely a procedural concept. Therefore, they argue that any government may strip its subjects of their fundamental freedoms or infringe their vital interests so long as this is done by way of a duly implemented legal mechanism. For example, at the Nuremberg trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....

, in an attempt to justify their crimes against Jewish and Romany population of Europe during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...

, some of the former leaders of Nazi Germany
Nazi Germany
Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...

 argued that they had broken none of the laws effective when Hitler had been in power. And it is only by invoking the rule according to a higher law that the Allied prosecutors were able to legitimately overcome such defenses.

In other countries, conversely, the political leaders assert that all written laws must be kept in line with the universal principles of morality, fairness, and justice. These leaders argue that, as a necessary corollary to the axiom that "no one is above the law," the rule of law requires the government to treat all persons equally under the law. However, the proclaimed right to equal treatment is susceptible to instantly becoming void each time the government denies a sufficient level of respect, dignity, and autonomy to a certain class of individuals or to human rights in general. ".
Therefore, the unwritten and universally self-explanatory principles of equality, autonomy, dignity, and respect are said to overrule conventional written laws enacted by the government. It is these principles that are often referred to as "natural law." They also constitute the basis of the "higher law theory."

Constitutional government as enforcement of the higher law


The Rechtsstaat doctrine (Legal state, State of right, Constitutional state, Constitutional government) was first introduced by the great German philosopher Immanuel Kant
Immanuel Kant
Immanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....

 in his latest works completed after the U.S. and French constitutions had been adopted in the late 18th century. Kant’s approach is based on the supremacy of country’s written constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

 created using principles of the Higher Law. This supremacy meant creating guarantees for the implementation of his central idea: a permanently peaceful life as a basic condition for the happiness and prosperity of the citizens. Kant was basing his doctrine exclusively on the idea of constitutionalism and constitutional government.

Kant had formulated the main problem of constitutionalism
Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....

 as an instrument for the practical implementation of the Higher Law as follows, “The constitution of a state is eventually based on the morals of its citizens, which, in its turn, is based on the goodness of this constitution.” This Kant’s idea has become the foundation for the constitutional theory of the 21st century. The Legal state concept is based on the ideas introduced by Immanuel Kant, for example, in his Groundwork of the Metaphysic of Morals:
“The task of establishing a universal and permanent peaceful life is not only a part of theory of law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve this goal, a state must become the community of a large number of people, living provided with legislative guarantees of their property rights secured by a common constitution. The supremacy of this constitution… must be derived a priori from the considerations for achievement of the absolute ideal in the most just and fair organization of people’s life under the aegis of public law.”

The Russian legal system, born in the 19th century as a result of the transformations initiated by the reforms of the Emperor Alexander II
Alexander II of Russia
Alexander II , also known as Alexander the Liberator was the Emperor of the Russian Empire from 3 March 1855 until his assassination in 1881...

, was (and still is) based primarily upon the German legal tradition. It was from the latter that Russia had adopted the doctrine of Rechtsstaat, which literally translates as "Legal State." Its closest English analogue is "the rule of law." The Russian Legal state concept adopts the written constitution as the country's supreme law (the rule of constitution). It is a fundamental but undefined principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the very first dispositive provision of Ukraine’s Constitution declares that "Ukraine is a sovereign and independent, democratic, social, legal state." Hence, the effort to invest meaning to the "Legal State" definition is anything but theoretical.

Valery Zorkin
Valery Zorkin
Valery Dmitrievich Zorkin is the first and the current Chairman of the Constitutional Court of the Russian Federation.Zorkin was born on 18 February 1943 in a rural area of the Maritime Province. In 1964, he matriculated from the Law Department of the Moscow University, in which he lectured until...

, President of the Constitutional Court of Russia, wrote in 2003, "Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by the society."

The Russian concept of Legal state has adopted many segments of constitutional economics
Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...

 which serves as a practical implementation of the higher law theory in economics.

Economist James M. Buchanan
James M. Buchanan
James McGill Buchanan, Jr. is an American economist known for his work on public choice theory, for which he received the 1986 Nobel Memorial Prize in Economic Sciences. Buchanan's work initiated research on how politicians' self-interest and non-economic forces affect government economic policy...

 argues that, in the framework of constitutional government, any governmental intervention or regulation must be conditioned by the three following assumptions. First, every failure of the market economy to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest, unconcerned with their own personal economic well-being. And third, changing the government responsibilities towards more intervention and control will not profoundly and perversely affect the social and economic life.

Buchanan rejects "any organic conception of the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...

 as superior in wisdom, to the individuals who are its members." This philosophical position is, in fact, the very subject matter of constitutional economics. A constitutional economics approach allows for a combined economic and constitutional analysis, helping to avoid a one-dimensional understanding. Buchanan, together with Kant, believes that a constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

 in its capacity as the Higher Law, intended for use by at least several generations of citizens, must be able to adjust itself for pragmatic economic decisions and to balance interests of the state and society against those of individuals and their constitutional rights to personal freedom and private happiness.

Buchanan also outlines importance of protection of the moral principles underlying constitutional norms. He writes that "the ethics of constitutional citizenship is not directly comparable to ethical behavior in interaction with other persons within the constraints imposed by the rules of an existing regime. An individual may be fully responsible, in the standard ethical sense, and yet fail to meet the ethical requirement of constitutional citizenship."

See also


  • Calder v. Bull
    Calder v. Bull
    Calder v. Bull, 3 U.S. 386 , is a United States Supreme Court case in which the Court examined its authority to review state legislature decisions.-Background:...

  • Constitution
    Constitution
    A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

  • Constitutional economics
    Constitutional economics
    Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...

  • Constitutionalism
    Constitutionalism
    Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....

  • Constitutional theory
    Constitutional theory
    Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government. It overlaps with legal theory, constitutionalism, philosophy of law and democratic theory...

  • Equality before the law
    Equality before the law
    Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....

  • Jurisprudence
    Jurisprudence
    Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...

  • Liberal legalism
    Liberal legalism
    Liberal legalism is a political and legal theory which can be defined as a belief that politics should be constrained by legal constitutional boundaries. Liberal legalism has also been called legal constitutionalism, such as is found in United States and Germany, with political constitutionalism,...

  • Nuremberg Principles
    Nuremberg Principles
    The Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...

  • Political philosophy of Immanuel Kant
    Political philosophy of Immanuel Kant
    Immanuel Kant favoured a classical republican approach to political philosophy. In Kant listed several conditions that he thought necessary for ending wars and creating a lasting peace. They included a world of constitutional republics by establishment of political community...

  • Rechtsstaat
    Rechtsstaat
    Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German jurisprudence, which can be translated as "legal state", "state of law", "state of justice", or "state of rights"...

  • Rule of law
    Rule of law
    The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

  • Rule of Law in Armed Conflicts Project
  • Roerich Pact