Difficulties and Developments of the Traditional Rule of Law
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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
