Legislation and the Rule of Law
Whether you believe in the rule of law or not, it is still important to understand the role of law in society. The rule of law helps keep people from getting into trouble. But it is also important to understand that a rule of law can be undermined by legislation. This article will explore some of the ways that legislation can impact the rule of law.
Generally speaking, the law is an ordered body of rules that is enforced by a group of people. Law is a good example of a social artefact that serves a number of useful purposes. It enables a group of individuals to achieve common goals while protecting individual liberty. It also serves as a check and balance to ensure that individuals are not overstepping their bounds. The law embodies a social contract that makes it possible for members of a group to participate in a fair and egalitarian society.
The best explanation of the generality of the law is that the law can be applied to individuals from all walks of life. This means that even the most litigious members of the community cannot be denied access to the law. The generality of the law means that it does not change when an individual leaves the group.
Legislation can undermine the Rule of Law
Throughout history, the Rule of Law has played an important role in political traditions. It is often cited as a key to nation-building. However, there are also a number of concerns about the way legislation can undermine the Rule of Law.
One way that legislation can undermine the Rule of Law is through the unequal distribution of power. The asymmetry of power between powerful officials can lead to clientelism, exclusion, and capture. This type of power asymmetries undermines policy effectiveness.
The rule of law also requires that people in authority exercise power in a manner that is consistent with well-established public norms. For example, a judge who makes a legal decision that is politically important can be judged as engaging in political activity.
Legal reasoning vs legal interpretation
Unlike legal reasoning, legal interpretation does not attempt to make the law. Rather, it evokes the legal norms that are relevant to the case. These norms are obtained through text and context. The meaning of a norm is inferred by the interpreter’s values.
Legal reasoning attempts to ensure that facts are interpreted correctly. It also serves as a means to protect citizens from unfair judicial action. This process is rooted in a triptych of facts, principles, and practices.
The legal reasoning of the Supreme Court of South Africa, for example, is differentiated from the legal reasoning of the United States and Canada. These courts have different theories of fundamental rights.