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The Importance of the Rule of Law

The idea of "RULE OF LAW" (hereinafter: ROL) was not invented by Albert V. Dicey (it has very antique origins), but the English author is fundamental in its recognition and definition. In An Introduction to the Study of the Law of the Constitution (1885), he gave three meanings of the rule of law:

➔"no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land";

➔"every man […] is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals" = no one is above the law and all are subject to the same law administered in the same courts.

➔"the general principles of the constitution are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts" = distrust towards the great declarations of principles: it is better to rely on an incremental process of common law decision-making (case by case).

According to some authors, the concept of ROL has become too broad and uncertain to be useful, due to an ideological abuse and a general over-use. However, it is impossible to say that it is useless for some reasons:

- in many cases judges refer to the ROL in giving their judgements;
- many international documents directly refer to the ROL (Universal Declaration of Human Rights, Treaty on the EU, Constitution of South Africa, etc.);
- the ROL is now contained in the British Constitutional Reform Act 2005.

The problem is that no definition of the ROL is provided, even if now it is cited in a statute. Maybe the drafters of the Constitutional Reform Act recognized the difficulty to define it and left this task to the judges, who have to rule in particular case and can give a concrete and evolving definition of the ROL.

However, it is important to stress that belief in the ROL does not import unqualified admiration of the law; but it leads to accept that we would very much rather live in a country which complies with this principle than in one which does not.
di Luca Porcella
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