Rule of law and limited government relationship with business

rule of law and limited government relationship with business

In political philosophy, limited government is where the government is empowered by law from a starting point of having no power, or where governmental. Graduate School of International Relations and Pacific Studies rule of law has been associated with economic growth: through security of property and enforcement of contract; through checks on government; and through checks on corruption and .. settlement that limited violence and re-established “law and order.”. Countries with limited governments have fewer laws about what individuals and businesses can and can't do. In many cases, such as the Limited government means there are fewer rules that must be followed and enforced.

This is partly because the Rule of Law is a working political idea, as much the property of ordinary citizens, lawyers, activists and politicians as of the jurists and philosophers who study it.

The features that ordinary people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions.

Legal philosophers tend to emphasize formal elements of the Rule of Law such as rule by general norms rather than particular decrees ; rule by norms laid down in advance rather than by retrospective enactments ; rule by norms that are made public not hidden away in the closets of the administration ; and rule by clear and determinate legal norms norms whose meaning is not so vague or contestable as to leave those who are subject to them at the mercy of official discretion.

But these are not necessarily what ordinary people have in mind when they call for the Rule of Law; they often have in mind the absence of corruption, the independence of the judiciary, and a presumption in favor of liberty. Contestation about what the Rule of Law requires is partly a product of the fact that law itself comprises many things, and people privilege different aspects of a legal system.

For some the common law is the epitome of legality; for others, the Rule of Law connotes the impartial application of a clearly drafted statute; for others still the Rule of Law is epitomized by a stable constitution that has been embedded for centuries in the politics of a country. In our own era, F.

There is also continual debate about the relation between law and the mechanisms of government. For some, official discretion is incompatible with the Rule of Law; for others it depends on how the discretion is framed and authorized.

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For some the final determination of a court amounts to the Rule of Law; for others, aware of the politics of the judiciary, rule by courts particularly a politically divided court is as much an instance of the rule of men as the decision of any other junta or committee see Waldron for a full account of these controversies. The fact that the Rule of Law is a controversial idea does not stop various organizations from trying to measure its application in different societies.

Groups like the World Justice Project concoct criteria and indexes of the Rule of Law, ranking the nations of the earth in this regard. The criteria can be hardly be described as rigorous. But people in business value these rankings as part of their estimation of country risk for foreign investments see Barro History of the Rule of Law The Rule of Law has been an important ideal in our political tradition for millennia, and it is impossible to grasp and evaluate modern understandings of it without fathoming that historical heritage.

The heritage of argument about the Rule of Law begins with Aristotle c. DiceyF. Because the heritage of this idea is so much a part of its modern application, a few highlights need to be mentioned. Though he formulated the question of whether it was better to be ruled by the best man or the best laws, he approached that question realistically, noting that it depended not only on the type of law one was considering but also on the type of regime that enacted and administered the law in question Politics b But Aristotle did maintain that law as such had certain advantages as a mode of governance.

Laws are laid down in general terms, well in advance of the particular cases to which they may be applied. Moreover, laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice. Rhetoric b There were, he conceded, some cases so fraught with difficulty that they could be handled by general rules—cases that required the focused insight of particular judges; he used the term epieikeia sometimes translated as equity.

But these cases should be kept to a minimum and legal training and legal institutions should continue to play a role in the way they are disposed of. In this context, something is arbitrary because it is extemporary: It is the arbitrariness of unpredictability, not knowing what you can rely on, being subject, as Locke put it Your thinking might be different from my thinking, and it might turn out that your view of the relation between your interests and my interests and your property and my interests might be quite different from my view of the matter and quite different again from the view of the next person I came across.

The whole point of moving from a state of nature to a situation of positive law was to introduce some predictability into this picture. Unfortunately, having laid down this requirement, Locke complicated matters by adding a substantive principle of respect for private property: But then there is a difficulty.

People in our day, as in his, disagree about the rival claims of labor and occupancy; they disagree about the background of common ownership; and they disagree about how much anyone may appropriate and how sensitive his appropriation must be to the needs of others. We disagree about all that—in ways that were made evident, for example, in the debates about the Lockean theory of Robert Nozick And Locke and his contemporaries disagreed too; Locke knew, and signaled in a number of places that he knew just how controversial all this was Tully By insisting therefore that positive law is subject to this substantive constraint, Locke subjected the legislature to a discipline of uncertainty.

Because the natural right of property was controversial, so the administration of any substantive constraint along these lines was bound to be controversial.

rule of law and limited government relationship with business

And because the substantive constraint was supposed to affect the validity of positive law Locke The judiciary has to be able to do its work as the mouthpiece of the laws without being distracted from fresh decisions made in the course of its considerations by legislators and policy-makers. Elsewhere in The Spirit of the Laws, Montesquieu developed a theory of the value of legalism. He associated this sort of respect with a monarchy ruling by law, as opposed to despotism: In monarchies, the administering of a justice that hands down decisions not only about life and goods, but also about honor, requires scrupulous inquiries.

The fastidiousness of the judge grows as more issues are deposited with him, and as he pronounces upon greater interests. In the modern debate we also hear echoes of the doctrine propounded in The Spirit of the Laws The Rule of Law used to be a proud tradition that distinguished governance in England both from the executive domination of droit administratif in Francis and also from the fatuous and abstract certainties of paper constitutions in countries like Belgium etc.

For Dicey, the key to the Rule of Law was legal equality: Officials are and often need to be treated differently in law than the ordinary citizen: For the ordinary person, the Rule of Law generates a presumption in favor of liberty: But for the state and its officials, we may want to work with the contrary presumption: Dicey had a knack of expressing the Rule of Law in terms of principles whose eloquent formulations belied their deeper difficulties.

His first principle of the Rule of Law was: It can be read as precluding any form of discretionary regulation. Dicey was indeed inclined to disparage all administrative discretion, particularly where it seemed to be superseding what had traditionally been regarded as judicial functions. But can we really do without discretion in modern governance? Hayek was by training an economist, but he also nurtured an interest in the relation between legal structures and forms of national economy.

Hayek warned in against the retention of anything like this mode of administration in peacetime. He made an eloquent argument that in normal times a society need not be managed but should be governed—and its people largely left to their own devices—within a framework of general rules laid down in advance.

These rules would operate impersonally to protect people from one another, not being aimed at any person or situation in particular and not being dependent for their operation on any expectation on the part of government as to what the particular effects of their application would be. But this lack of particular knowledge on the part of the government would be offset by the fact that rules would provide a framework of predictability for ordinary people and businesses.

They would know that they would not be molested by the state, provided they operated within the parameters of the general and impersonal rules. The attention was still on the implications of Rule of Law for liberty. But now Hayek began to wonder whether the texts of clear general legislated rules would really provide an appropriate framework for freedom.

He favored something more like a common law model of predictability, with principles and solutions emerging from a series of judicial decisions in an almost evolutionary way. The conventional wisdom of the legal positivists held that laws could be impeccably drafted and even-handedly administered and still be hideously unjust: But Fuller believed, as a matter of political psychology, that there would be reluctance to use the forms of law—general and public norms—to embody and inscribe injustice.

Fuller acknowledged that this link between legality and justice was tentative. It was certainly controversial. But whether this connection held or not, he also wanted to insist that the complete absence of respect for formal criteria of legality might deprive a system of power of its status as law: When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretense of legality—when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law.

Fuller responded by denying that the significance of his eight principles was purely instrumental. They also constituted a morality of respect for the freedom and dignity of the agents addressed by the law: This thesis was separate from the connection between law and morality intimated in Fuller But the two accounts of the moral significance of law were connected in a way that John Finnis explained: A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesis, holds in contempt.

He understood that law constituted a distinct kind of governance that might not be relevant for every task of the state. He contrasted it not just with a Nazi-style reign of terror, but with the sort of managerial administration that might be necessary for allocative decision-making in a mixed economy like the United States in the s.

Rule of Law and Rule by Law Some theorists draw a distinction between the Rule of Law and what they call rule by law see e. They celebrate the one and disparage the other.

The Rule of Law is supposed to lift law above politics. The idea is that the law should stand above every powerful person and agency in the land. Rule by law, in contrast, connotes the instrumental use of law as a tool of political power. It means that the state uses law to control its citizens but tries never to allow law to be used to control the state.

Rule by law is associated with the debasement of legality by authoritarian regimes, in modern China for example. Thomas Hobbes may be seen as a theorist of rule by law. But Hobbes also thought that it would undermine peace—indeed it would undermine the very logic of sovereignty—for the ultimate law-maker to be bound by the laws he applied to his subjects Hobbes []: However, the distinction may not be so clear-cut. Even rule by law seems to imply that rulers accept something like the formal discipline of legality.

Unless the orders issued by the state are general, clear, prospective, public, and relatively stable, the state is not ruling by law. So this thin version of legality does still have moral significance in the respect it pays to the human need for clarity and predictability. Even if its use remains instrumental to the purposes of the state, it involves what Fuller called a bond of reciprocity with the purposes of those who are governed: Some jurists who maintain the contrast between the Rule of Law and rule by law have a more ambitious agenda.

They take seriously the ancient idea that we might be ruled by laws and not by men. After all, all law is made by people and interpreted by people and applied by people. It can no more rule us by itself, without human assistance, than a cannon can dominate us without an iron-monger to cast it and an artilleryman to load and fire it.

The jurists who contrast the Rule of Law with rule by law believe they can make this work by focusing on laws whose human origins are in some way diffuse or immemorial. We are not necessarily talking here about natural law, but perhaps about something like customary law or common law—law that is not so evidently a top-down product of powerful human law-makers Epstein Common law grows and develops under its own steam, and need not be conceived as a device by which some identifiable humans rule over others.

No doubt there is a lot of mythology in this. But it remains true that the human element is diffuse in this sort of system, and at any given time the law that emerges is a resultant of the work of many people rather than the intentional product of a domineering majority ruling us from the legislative center of a state.

As we saw in the discussion of Hayekthe other side of this coin is a disparagement of legislation, precisely because its enactment seems patently and undeniably to represent the rule of powerful officials.

Legislation is a matter of will. The legislative process produces law simply by virtue of a bunch of people in an assembly deciding that a given law is to be produced. And this is done by the very men—powerful politicians—to whose power the Rule of Law is supposed to be an alternative. However, most people who value the Rule of Law do not accept this approach. If a statute is properly drafted if it is clear, intelligible and expressed in general terms and prospectively enacted and promulgated, and if it is administered impartially and with due process—they will call this an entirely appropriate exercise under the Rule of Law.

Indeed that is what many scholars mean by the Rule of Law: The argument that it should be put aside because it does not contrast sufficiently with the rule of men seems perverse.

No one doubts that legislation can sometimes undermine the Rule of Law, by purporting for example to remove legal accountability from a range of official actions or to preclude the possibility of judicial review of executive action.

But this is not a problem with legislation as such; this is a concern about the content of particular enactments. Rule by judges, too, can sometimes be seen as the very sort of rule by men that the Rule of Law is supposed to supersede see Waldron Formal, Procedural and Substantive Requirements Theorists of the Rule of Law are fond of producing laundry lists of the principles it comprises.

These principles are of disparate kinds, which may loosely be divided into principles that address the formal aspects of governance by law; principles that address its procedural aspects ; and principles that embrace certain substantive values. These principles are formal, because they concern the form of the norms that are applied to our conduct. So for example, the requirement that laws be general in character, rather than aimed at particular individuals, is purely a matter of form.

A formal requirement of generality does not guarantee justice; but that partly reflects the fact that justice and the Rule of Law work as separate criteria for evaluating a political system. Generality is an important feature of legality, reflected in the longstanding constitutional antipathy to Bills of Attainder. Of course law cannot work without particular orders, but as Raz points out []: These rules themselves should operate impersonally and impartially.

Besides the form of the rules themselves there is also the nature of their presence in society.

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The Rule of Law envisages law operating as a relatively stable set of norms available as public knowledge. These are features that flow partly from the fact that laws are supposed to guide conduct, which they cannot do if they are secret or retroactive. But it is not just a matter of the pragmatics of governance. Laws face in two directions: Laws that are secret and retroactive so far as i is concerned may still operate effectively in respect of ii.

So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: The requirement of clarity is also important in this regard.

Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly. True, much modern law is necessarily technical Weber []: It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires.

In the nineteenth century, Jeremy Bentham We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve I have adapted this list from Tashima What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them such as it wasand to be represented so that their own side of the story could be explained.

No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded.

It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing.

Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase.

Some procedural requirements are also institutional in character: This side of the Rule of Law is connected with the constitutional principle of the separation of powers. That principle is sometimes justified simply on the ground that it is unhealthy for power to be institutionally concentrated in society. But it also has a Rule of Law justification inasmuch as it assigns distinct significance to distinct stages in the making and application of laws Waldron They do not think it is possible to sharply separate our political ideals in the way Raz seems to suppose.

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Generality—proceeding according to a rule—is often said to contain the germ of justice Hart And, stability, publicity, clarity, and prospectivity indicate a pretty fundamental connection between the Rule of Law and the conditions of liberty.

We have to be careful, however, to distinguish between allegedly substantive requirements of the Rule of Law and specification of the deeper values that underlie and motivate the ideal even in its formal and procedural requirements. Some jurists believe that there is a special affinity between the Rule of Law and the vindication and support of private property. The commitment to such processes is the essence of the rule of law.

rule of law and limited government relationship with business

But they think nevertheless that a contingent connection between the Rule of Law and private property can be established by showing that the forms of regulation defenders of private property are concerned about tend to be forms of regulation that the Rule of Law, even on a more austere conception, prohibits. What was missing was the substantive component of the rule of law.

The process by which the laws were made was not fair only whites, a minority of the population, had the vote. And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. World Justice Project The Bill of Rights added to the American Constitution, along with other constitutional amendments, limits the power of government in two ways.

First, it restricts the range of governmental authority by prohibiting the government from intruding in certain areas, like religious worship or freedom of speech, and grants the government authority over specifically enumerated aspects of life, like regulating the economy and collecting taxes.

Second, it sets certain procedures the government must follow when dealing with the people. Examples of this include the protection from unreasonable search and seizure of property and protection from cruel and unusual punishment for crimes for which one is convicted.

The explicit outline of what the government is permitted to do and barred from doing combined with the power of common people to seek repairs for breaches of their constitutional rights is what protects the rights of the people.

Also, it grants that the people themselves retain power under this system of government as well. These are key points of the concept of limited government established by the Constitution in the United States because they overtly state the power of the federal government is not unlimited. Republicanism[ edit ] Where the government oversteps its authority, the people have the right, as listed in the Constitution, to make their grievances known through petition and through public elections for government office.

If the people disapprove of the actions of those in power and the rules they legislate, they have the ability to put new people in power who will better represent the public interest. Since, under the Constitution, the government is ultimately held accountable by the people, the public always has the opportunity to keep the government's power in check.

Checks and balances[ edit ] The Constitution also partially prevents the government from expanding its own power by creating a system of checks and balances through the separation of powers. Articles OneTwoand Three of the Constitution create three separate branches of government, equal in level power, but different in responsibility, that all control the government.