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Rule according to higher law

posted 11 Jan 2011, 18:34 by Jess Maher

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. [1] 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, even though acting in conformity with clearly defined and properly enacted legal rules, still produces results which many observers find unfair or unjust.[2] "Higher law" can be interpreted in this context as thedivine or natural law or basic legal values, established in the international law, – the choice depending on the viewpoint. But this is definitely a Law above the law. [3] And it is in this capacity that it possesses the equal legal value for both the common and civil law jurisdictions, as opposed to natural law which is largely associated with common law. [4] "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".[5]

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, traditional for the countries of common law, and the originally German doctrine of Rechtsstaat, translated into other languages of continental Europe as Etat de droit (Fr.),Estado de derecho (Sp.), Stato di diritto (It.), and Правовое государство (Ru.).[6] 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 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 societites themselves. [7]