5. Difficulties and Developments of the Traditional Rule of Law

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,

43 Herling and Lyon 2004. 44 This principle is also enshrined within Art 6 of the ECHR which guarantees the right to a fair trial and access to the Courts.

including public opinion, political consciousness, and the prevailing sense of justice.45 The rule of law is constantly changing but the basic principles remain. Society is also constantly changing, and now there are difficulties in society’s relationship with the traditional rule of law.

(a) Two levels of development The rules of law and administrative law have a long common development in history, so that the rule of law seemed to be a well-ordered administrative law.46 Nevertheless there are two levels of developments in the present idea of rule of law.47 The first is the objective legal structuring by law and the second is a series of subjective individual legal positions. Both can be explained as followed.

In the first level, the relationship is based on a model in which law is a way of structuring and restricting the power of the state. This idea has a strong dualistic concept about the relation between state and society, and the task of the state is to do only specific intervention which adheres closely to this legal concept. Here we have to be careful not to colour the contrasts between the older liberalism and the younger concept of the social rule of law. A convergence between the social model and rechtsstaat understanding can be seen. According to the rechtsstaat, a legal and legally controlled executive must exist. The goal is the ‘most practicable formal justice of the administration’ and the legal steering function is based upon a degree of rationality behind the law. This again relies on the separability of causes, the reliability of effects, and a division of legislation and law application, following the prerequisite norms and schemes.

The second level is more subjective and has important individual legal positions. The concept of rechtsstaat has developed further according to this level. In the newer view, all national powers are bound decisively by basic rights. The basic rights permeate the entire administrative legal system. They are in the single fields of special administrative law as well as generally omnipresent. This is a mark of the rechtsstaat development under the constitution. This includes: the constitutional rights and norms of proportionality; equality and legal certainty; and the concept of the rechtsstaat based on the elementary human needs for rationality, attention, and orientation. Administrative action was, according to the rechtsstaat, an objective-legal principle in the beginning. In the current development, the individual as a subject is the centre of the administrative legal scope.

(b) Three points of attention related to these developments From this perspective on administrative law, let us focus on the following points. On one side, all the administrative law components have a strong individual aspect. An emphasis on effects, proportionality, reasonableness, and fairness has become drastically more important in administrations’ legal systems. Now one may see a clear subjective euphemism of administrative law as a second mark. The subjective right is no longer attached to a specific award but has become the protection standard everywhere where there are standards of objective interests. The law has not only its general regulation function, but it also wants to bring this function in balance with individual rights.

45 Van Banning and Van Genugten 1993, 42. 46 Schmidt-Assmann 2006. 47 Schmidt-Assmann 2003, § 26.