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The Rule of Law and Good Governance
the international level, such as the mandate system of the League of Nations, the international protection of minorities, and the development of the International Labour Organization. However, the greatest steps were taken after the Second World War. Three generations of human rights jurisprudence can be distinguished. Human rights of the first generation are ‘negative’ human rights, or civil liberties, which enjoin states to abstain from interfering with personal freedom. Human rights of the second generation are ‘positive’ rights; these concern economic or social rights, such as the right to work or the right to social security, which entitle individuals or collectives to the provision of certain goods or social services. Human rights of the third generation are highly complex composited rights, like the right to development, the right to peace, and the right to a clean environment. Several of these rights, especially the first and second generation, were originally codified on a national level and, eventually, there was a development on the current system of international protection of human rights. Rights and obligations are explicitly regulated under the human rights treaties. The developments of human rights have also depended upon the basic principles which make up the bedrock of our legal system. The conduct of governmental institutions is a decisive factor in bringing the prevailing societal climate in a given state up to the level of the expectations raised by those soft principles. In that context, the concept of good governance plays a crucial role. In Chapter 12 of this book, the actual situation on human rights and its relation to the principles of good governance is discussed.
2. Different Historical Roots and Traditional Perspectives The rule of law—in both the broad and narrow senses—has to do with the different historical roots of the common law and the continental legal systems. The historical roots of the two legal systems have critically influenced the major differences, as described below.
(a) Common law and continental law tradition The common law tradition sees law only as an instrument to limit the powers of the state, whereas in the continental tradition, law is used not just to limit but also to empower the government. If the constitution is seen as an instrument that not only limits state power but also empowers state agencies to change the society, it may have a more direct effect upon the development and peace processes. As we saw before, it is crucial to know what the substance behind the label ‘rule of law’ is in a legal system. It may have two totally different meanings according to the country’s tradition. It can mean obedience to the existing positive law (as in the continental law system), or it may signify (according to the common law tradition) that inalienable rights are to be respected even by the sovereign. Depending on the legal system of the country, one has to carefully investigate the remedies available to the citizens, the procedure and fact finding, the status of the administration (including the police), the jurisdiction and the power of the court, and in particular the independence of the courts. In civil law countries, decentralization needs to be implemented by the local authorities legislating on several specific areas. In common law countries, one has to examine the possibilities for local authorities to issue bylaws and to find out the extent of the parliament’s competence.
