Basic

Concepts
ofLaw
Dr. Mert Silahşör
Rule of Law

Chapter 6
 Chapter 6
Part 2
▪ What is Rule of Law?
▪ Elements of the Rule of Law
• In Search of a Scope and Standard
• Formal or Substanstive Rule of Law
• Rule by Law vs. State of Justice
• Locke’s Argumentation
• Dicey’s Formulation
• Classification of Hüseyin Hatemi
• Council of Europe’s Standards for the Rule of Law
• Elements of the Rule of Law
• Legality
• Legal Certainty
• Prevention of abuse (misuse) of powers
• Equality before the law and non-discrimination
• Access to Justice
Wherever Law ends, Tyranny begins.
- John Locke, Second Treatise of Government (1689)

I prefer a liberal dictator to democratic government

lacking in liberalism.
- Friedrich von Hayek, El Mercurio (12 April 1981)
Constructing the Puzzle:
Elements of the Rule of Law
In Search of a Scope and Standard
• Discussions among theorists about the ‘rule of law’ are riven by
disagreements over what it means, its elements or requirements, its
benefits or limitations, whether it is a universal good and other
complex questions.
• These debates are essential, but they can be confusing to non-
specialists who seek to obtain a basic understanding of this important
concept.
• This part of chapter will provide an overview of core aspects of the
rule of law.
Formal or Substanstive Rule of Law
The rule of law, at its core, requires that government officials and
citizens be bound by and act consistently with the law.
• This basic requirement entails a set of minimal characteristics: law
must be set forth in advance (be prospective), be made public, be
general, be clear, be stable and certain, and be applied to everyone
according to its terms. In the absence of these characteristics, the
rule of law cannot be satisfied.
• This is the ‘formal’ or ‘thin’ definition of the rule of law.
• More ‘substantive’ or ‘thicker’ definitions of the rule of law also exist,
which include reference to fundamental rights, democracy and/or
criteria of justice or right.
• Modern theoretical formulations of the rule of law and the
Rechtsstaatsprinzip are commonly divided into two basic categories:
formal and substantive versions.
• Formal conceptions focus on the procedure in which law is made, the
form it must take and its temporal dimension. However, they are not
concerned with the content of the law, that is, whether a law is ‘good’
or ‘bad’.
• Within this category of formal conceptions, ‘thinner’ and ‘thicker’
versions can be distinguished, depending on the exact requirements.
Rule by Law vs. State of Justice
Kanun Devleti vs. Adalet Devleti

• The rule of law has been variously interpreted, but it must be

distinguished from a purely formalistic concept under which any
action of a public official which is authorised by law is said to fulfil its
requirements.
• Over time, the essence of the rule of law in some countries was distorted so
as to be equivalent to “rule by law”, or “rule by the law”, or even “law by
rules”.
• These interpretations permitted authoritarian actions by
governments and do not reflect the meaning of the rule of law
today.
• The thinnest formal version only requires that government act
through law (‘rule by law’), while thicker versions require the law to
have certain qualities – for instance, to be prospective, general, clear,
relatively stable and applied by an independent judiciary.
• The thickest formal version adds as a further requirement that law be
passed in a democratic process.
• Substantive conceptions of the rule of law and the Rechtsstaat also
incorporate these formal elements but add to them requirements
about the content of the law. According to the most common
substantive version, the rule of law requires the guarantee of
individual rights.
• The thickest substantive version requires not only the advancement
of individual rights but also the establishment of ‘social, economic,
educational and cultural conditions under which [the individual’s]
legitimate aspirations and dignity may be realized.
• As is apparent from the account in the previous sections, elements of
these different theoretical conceptions of the rule of law and the
Rechtsstaat have been realised to different extents at different
historical periods in different political systems.
Locke’s Argumentation
John Locke start his treaties with defining the political power, the authority
to govern people and country. According to him political power is;
«right of making Laws with Penalties of Death, and consequently all less
Penalties, for the Regulating and Preserving of Property, and of employing
the force of the Community, in the Execution of such Laws and in defence
of the Common-wealth from Foreign Injury, and all this only for the Publick
Good.»
• Much of the remainder of the Treatise is a commentary on this
paragraph.
• Locke’s definition of political power has an immediate moral dimension.
It is a “right” of making laws and enforcing them for “the public good.”
• For Locke power never simply means “capacity” but always “morally
sanctioned capacity.” Morality pervades the whole arrangement of society,
and it is this fact, that makes using of power legitimate.
Dicey’s Formulation
The term ‘rule of law’ started to be used in the second half of the nineteenth century. In his
authoritative and highly influential work «Introduction to the Study of the Law of the
Constitution», first published in 1885, Albert Venn Dicey provided the first prominent
formulation of the rule of law.
• For Dicey the rule of law had three core features:
• First, that no person should be punished but for a breach of the law, which should be certain and prospective,
so as to guide peoples’ actions and transactions and not to permit them to be punished retrospectively. He
believed that discretionary power would lead to arbitrariness. The rule of law means ‘the absolute supremacy
or predominance of regular law as opposed to the influence of arbitrary power’.
• Secondly, that no person should be above the law and that all classes should be equally subjected to the law.
The rule of law requires ‘equality before the law, or the equal subjection of all classes to the ordinary law of the
land administered by the ordinary law courts’. This implies that no one is above the law and that public officials
do not have special immunities or privileges.
• Thirdly, that the rule of law should emanate not from any written constitution but from the “common (judge-
made) law”. Dicey thought that the rule of law expresses the fact that the constitutional law is ‘the result of the
judicial decisions determining the rights of private persons in particular cases brought before the courts’.
According to Dicey, the rights of the individual are protected not by a written constitution or a bill of rights but
by decisions of the courts – the common law.
• Although Dicey’s formulation of the rule of law has been much criticized, it has
had a great influence on British legal doctrine and is still regarded as the classic
definition today.
• The values underlying Dicey’s rule of law – legality, certainty, predictability,
consistency, accountability as well as due process and access to justice – remain
at the heart of modern conceptions of the rule of law.
• The practical implementation of the rule of law occurs primarily through judicial
review of the actions of public officials: the most important grounds of judicial
review all rest in some way on the rule of law.
Classification of Hüseyin Hatemi
• The Turkish lawyer and scholar Hüseyin Hatemi classifies the elements of rule of
law with two categories: fundamental principles and assuring principles.
• Fundamental Principles:
• Principle of Equity (Eşitlik İlkesi)
• Principle of Fairness (Hakkaniyet İlkesi)
• Principle of Bona Fides (Dürüstlük İlkesi)
• Assuring Principles:
• Existence of a Constitution
• Supremacy of Constitution
• Principle of Democracy
• Principle of Independent Judiciary
Council of Europe’s Standards for the Rule of Law
The concept of the “Rule of Law”, along with democracy and human rights, makes up the three
pillars of the Council of Europe and is endorsed in the Preamble to the European Convention on
Human Rights. It is also enshrined in a number of international human rights instruments and other
standard-setting documents.
According to European Commission for Democracy through Law of the Council, it seems that a
consensus can now be found for the necessary elements of the rule of law as well as those of the
Rechtsstaat which are not only formal but also substantial or material.
In 2016, the Commission decided to draft an operational tool for assessing the level of Rule of Law
compliance in any given state, and this led to the elaboration of the Rule of Law Checklist, based on
the five core elements of the Rule of Law, sub-itemised into detailed questions.
According to Democracy through Law Commission the core elements of
rule of law are:
1. Legality
2. Legal Certainty
3. Prevention of abuse (misuse) of powers
4. Equality before the law and non-discrimination
5. Access to justice
 Rule of Law Checklist
❑ 1. Legality ❑ 4. Equality before the law and non-discrimination
❑ Supremacy of the law ❑ Principle
❑ Compliance with the law ❑ Non-discrimination
❑ Relationship between international law and domestic law ❑ Equality in law
❑ Equality before the law
❑ Law-making powers of the executive
❑ Law-making procedures ❑ 5. Access to justice
❑ Exceptions in emergency situations ❑ a. Independence and impartiality
❑ Duty to implement the law ❑ Independence of the judiciary
❑ Private actors in charge of public tasks ❑ Independence of individual judges
❑ Impartiality of the judiciary
❑ 2. Accessibility of legislation ❑ The prosecution service: autonomy and control
❑ Accessibility of court decision ❑ Independence and impartiality of the Bar
❑ Foreseeability of the laws
❑ b. Fair trial
❑ Stability and consistency of law ❑ Access to courts
❑ Legitimate expectations ❑ Presumption of innocence
❑ Non-retroactivity ❑ Other aspects of the right to a fair trial
❑ Nullum crimen sine lege and nulla poena sine lege principles ❑ Effectiveness of judicial decisions
❑ Res judicata
❑ c. Constitutional justice (if applicable)
❑ 3. Prevention of abuse (misuse) of powers
• The Checklist is intended as a comprehensive tool to assess the degree of respect
for the Rule of Law in a given State. It may be used by a variety of stakeholders:
state authorities, international organisations, non-governmental organisations,
scholars and citizens in general. However, the first addressees of the Rule of Law
Checklist are the States themselves.
• The Rule of Law is linked not only to the protection and the promotion of Human
Rights, but also to Democracy. The participation of the citizens in the
strengthening of the Rule of Law is thus paramount.
The Rule of Law can only flourish in an environment where people feel
collectively responsible for the implementation of the concept.
Elements of the Rule of Law
• The rule of law addresses the exercise of power and the relationship between the
individual and the state.
• It is important to recognise that during recent years due to globalisation and deregulation
there are international and transnational public actors as well as hybrid and private actors
with great power over state authorities as well as private citizens.
• Today, the rule of law in its proper sense is an inherent part of any democratic
society.
• The notion of the rule of law requires everyone to be treated by all decision-makers with
dignity, equality and rationality and in accordance with the law, and to have the opportunity
to challenge decisions before independent and impartial courts for their unlawfulness, where
they are accorded fair procedures.
• Central to the wheel and the rule of law is the concept that no one is above the law – it is
applied equally and fairly to both the government and citizens. This means that all people,
regardless of their status, race, culture, religion, or any other attribute, should be ruled equally
by just laws.

• Beyond this, the outer edge of the wheel illustrates a number of interrelated principles, such as
the presumption of innocence, and fair and prompt trials.

• These principles can be considered essential elements that contribute to maintaining the rule of
law. Without these, the wheel would fail to turn and rule of law would not continue to be upheld
and maintained.

• Another essential element is that these principles and rule of law is supported
by informed and active citizens.
• Without responsible and engaged citizens, society is unable to work together to uphold important
principles and values which support our rule of law and democratic society.
Legality
Kanunilik
• The principle of legality is at the basis of every established and functional
democracy. It includes supremacy of the law: State action must be in accordance
and authorised by the law.
• The law must define the relationship between international law and national law
and provide for the cases in which exceptional measures may be adopted in
derogation of the normal regime of human rights protection.
• One of the most fundamental principles implicit in the rule of law and the
Rechtsstaatsprinzip is the requirement for a legal basis of all government action.
This ‘principle of legality’, in turn, implies a number of further requirements, in
particular that of sufficient precision.
• Since the rule of law aims to secure ‘a government of laws, and not of men’, it implies as its
perhaps most basic and central principle that the government is bound by law and that all of
its actions must be authorised by law.
Legal Certainty
Hukuki Belirlilik
• Legal certainty involves the accessibility of the law. The law must be certain,
foreseeable and easy to understand. Basic principles such as nullum crimen sine
lege/nulla poena sine lege, or the non-retroactivity of the criminal law are
bulwarks of the legal certainty.
• According to this principle, law must be of a certain quality: it must be published
in advance, adequately accessible and sufficiently precise. These requirements
are designed to ensure legal certainty, the central concern of a formal conception
of the rule of law.
• While it is normally not very difficult to assess whether a given law meets the first
two requirements, the requirement of sufficient precision may pose a number of
problems.
• The need for certainty does not mean that discretionary power should not be
conferred on a decision-maker where necessary, provided that procedures exist
to prevent its abuse.
• In this context, a law which confers a discretion to a state authority must indicate
the scope of that discretion.
• It would be contrary to the rule of law for the legal discretion granted to the
executive to be expressed in terms of an unfettered power.
• Consequently, the law must indicate the scope of any such discretion and the
manner of its exercise with sufficient clarity, to give the individual adequate
protection against arbitrariness.
• Legal certainty requires that legal rules are clear and precise, and aim at ensuring
that situations and legal relationships remain foreseeable.
• Retroactivity also goes against the principle of legal certainty, at least in criminal
law since legal subjects have to know the consequences of their behaviour; at
least in criminal law,
• In civil and administrative law to the extent retroactivity negatively affects rights
and legal interests.
• In addition, legal certainty requires respect for the principle of res judicata. Final
judgements by domestic courts should not be called into question. It also
requires that final court judgments be enforced.
• Legal certainty also means that undertakings or promises held out by the state to
individuals should in general be honoured (the notion of the ‘legitimate
expectation’).
Prevention of Abuse/Misuse of Powers
• Preventing the abuses of powers means having in the legal system safeguards
against arbitrariness; providing that the discretionary power of the officials is not
unlimited, and it is regulated by law.
• Although discretionary power is necessary to perform a range of governmental
tasks in modern, complex societies, such power should not be exercised in a way
that is arbitrary.
• Arbitrary exercise of power permits substantively unfair, unreasonable, irrational
or oppressive decisions which are inconsistent with the notion of rule of law.
Equality Before the Law and Non-discrimination
• Equality before the law is probably the principle that most embodies the
concept of Rule of Law.
• It is paramount that the law guarantees the absence of any discrimination
on grounds such as race, colour, sex, language, religion, political opinion,
national or social origin, birth etc.
• Similar situations must be treated equally and different situations
differently. Positive measures could be allowed as long as they are
proportionate and necessary.
• The principle requires a systematic rule of law that observes due process to
provide equal justice, and requires equal protection ensuring that no
individual nor group of individuals be privileged over others by the law.
Access to Justice
• A crucial element of any conception of the rule of law is the provision
of procedural safeguards and access to justice.
• Access to justice implicates the presence of an independent and
impartial judiciary and the right to have a fair trial.
• The independence and the impartiality of the judiciary are central to
the public perception of the justice and thus to the achievement of
the classical formula: “justice must not only be done, it must also be
seen to be done”.
Selam ve sevgiler, sağlıcakla kalınız.

Dr. Mert Silahşör

msilahsor@aybu.edu.tr