Good Governance , Concept & Context

Page 112

Difficulties and Developments of the Traditional Rule of Law

87

have been very deferential to the actions of the executive. In doing so, they allow discretionary power to be potentially abused by not providing an effective check on its use. By not checking the executive, they are compromising the rule of law. This compromise may be accepted if there is an emerging threat to the life of the nation or the power is strictly required by the exigencies of the situation (proportionality). David Herling and Ann Lyon43 present a list of key elements of the rule of law, according to the practices used in the United Kingdom. These are: (1) government according to the law; (2) the courts are independent of the executive in the administration of justice; (3) the powers of the executive do not exceed those known to the courts; (4) the rule of law imposes duties upon the law-​makers; (5) retroactivity and the common law; (6) the necessity for the publication of laws; (7) the principle that laws should be stable; (8) judicial creativity and the stability of laws; (9) equality before the law; (10) the law’s application to the executive; (11) rights are declared by the common law; (12) the principle is in the keeping of the courts.44

5. Difficulties and Developments of the Traditional Rule of Law The narrow and broad concepts of the rule of law have gradually come closer. This means that there is (or should be) a legal basis for the activities of the government and the government should act according to the law. Also, in the narrow view of the rule of law there is a need for control by the independent judicial court. But what do we see in the law? There are more and more powers given to the administration and these powers include broad discretionary space. In the law, we also find several open norms which have to be filled in by the administration. The administration is developing more policy rules, and in those rules we find the norms according to which the administration is acting. It is impossible for parliament to control all these regulations and, in practice, parliament never discusses individual cases. When there are conflicts between the administration and the citizens, it is often too difficult for individual citizens to start a legal procedure. These developments are not only in one or two fields but almost in all the policy fields of the government, perhaps more than twenty broad policy fields in all. There is a direct link between the general and specific aspects of administrative law. The consequence is that the traditional concept of rule of law no longer works due to the very loose legislation, the strong development of policy rules, and the difficulties for parliamentary and judiciary control. The need for general and substantial norms for the government is clear, and these should be norms which have to be followed by each branch of the government. The meaning of the rule of law has gone through a process of change which runs roughly parallel with the view on the role and objectives of a national government. As that view has evolved, so too has the concept of the rule of law. This is a dynamic concept and does not stand for an abstract, unchanging set of unambiguous rules, but rather for a range of principles which have to be filled in on a case-​by-​case basis. The rule of law should be seen as a series of legal standards which bind governments and subjects. The exact content of these standards is determined by several factors, Herling and Lyon 2004. This principle is also enshrined within Art 6 of the ECHR which guarantees the right to a fair trial and access to the Courts. 43 44


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Articles inside

Index

44min
pages 332-353

Bibliography

38min
pages 306-331

Governance

14min
pages 301-305

2. Part II: The Specification of the Principles of Good Governance

8min
pages 298-300

4. Conclusions

9min
pages 291-294

of Human Rights

2min
page 290

2. Good Governance in International Case Law

2min
page 289

Ombudsman

17min
pages 280-285

4. Conclusions

3min
pages 286-287

Court of Justice

30min
pages 270-279

Institutions

2min
page 269

16. Implementation of Good Governance Principles on the European Level

2min
page 268

5. Conclusions

2min
pages 266-267

South Africa

13min
pages 261-265

3. Implementation of the Good Governance Principles in Canada

21min
pages 253-260

7. Conclusions

12min
pages 220-224

2. Implementation of Good Governance in Northern Europe

2min
page 226

6. Cases about the Implementation of Good Governance Principles

5min
pages 218-219

5. Different Developments in the Practices of Different Countries

2min
page 217

2. Concept and Principles of Good Governance and Integrity

2min
page 212

Practices of Good Governance

6min
pages 214-216

the Non-EU Country Studies

1min
page 213

1. Good Governance: The Need and the Practical Relevance

2min
page 211

6. Conclusions

1min
pages 207-209

5. Sources of the Principle of Human Rights

14min
pages 201-206

3. Specification of the Concept

2min
page 198

2. The Concept of the Principle of Human Rights

2min
page 197

4. Institutions Involved

4min
pages 199-200

6. Conclusions

1min
page 195

5. Sources of the Principle of Accountability

5min
pages 193-194

2. The Concept of Accountability

5min
pages 183-184

6. Sources of the Principle of Effectiveness

5min
pages 179-180

7. Conclusions

1min
page 181

5. Institutions Involved

10min
pages 175-178

4. Specification of this Concept

2min
page 174

3. The Concept of Effectiveness

12min
pages 170-173

6. Conclusions

3min
pages 164-165

2. Development of the Principle of Effectiveness

5min
pages 168-169

3. Specification of the Concept

10min
pages 157-160

5. Sources of the Principle of Participation

5min
pages 162-163

4. Institutions Involved

2min
page 161

1. The Development of the Principle of Participation

2min
page 155

9. The Principle of Participation

2min
page 154

2. The Concept of Participation

2min
page 156

6. Conclusions

2min
pages 152-153

5. Sources of the Principle of Transparency

20min
pages 145-151

4. Institutions Involved

8min
pages 142-144

3. Specification of the Concept

7min
pages 139-141

2. The Concept of Transparency

5min
pages 137-138

2. The Concept of Properness

2min
page 125

5. Conclusions

1min
pages 121-123

3. Specification of the Concept

21min
pages 126-133

3. Democracy and Transparency

2min
page 119

4. Democracy and Participation

2min
page 120

2. Democracy: Direct and Representative

2min
page 118

6. The Role of Good Governance Related to these Developments

2min
page 114

7. Conclusions

1min
page 115

3. Rule of Law and Rechtsstaat: Specification of Differences

5min
pages 106-107

5. Difficulties and Developments of the Traditional Rule of Law

5min
pages 112-113

4. Rule of Law and Rechtsstaat: Formal and Substantial Perspectives

11min
pages 108-111

2. Different Historical Roots and Traditional Perspectives

2min
page 105

7. Conclusions

3min
pages 98-99

5. Good Governance and Integrity

18min
pages 89-95

4. The Nature of Principles in the Legal Theory

7min
pages 86-88

3. The Relationship between Law and Values

5min
pages 84-85

6. Conclusions

4min
pages 78-79

5. Good Governance on the International Level

12min
pages 73-77

2. Dworkin and Hart

8min
pages 81-83

4. Good Governance on the European Union Level

14min
pages 68-72

3. Good Governance and the Europeanization of National Law

4min
pages 66-67

2. Good Governance on the National Level in Europe

25min
pages 57-65

7. Conclusions

2min
page 49

4. Good Governance and the Main Developments

9min
pages 34-36

2. Concept of Good Governance

8min
pages 41-43

6. Conclusions

3min
pages 38-39

4. Institutions Involved within a Framework of Checks and Balances

6min
pages 45-47

Implementation of Good Governance in the United Kingdom

2min
page 31

2. Good Governance and Law

2min
page 30

5. Structure of the Three Parts of this Book

2min
page 37

3. Specification of the Principles of Good Governance

2min
page 44
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