Chapter 1 the concept and origin of the rule of
law
How did the rule of law emerge?
What characterizes a constitutional state?
government must act when citizens use violence against each other -> government does not have a free hand: the
Netherlands is a democracy based on the rule of law and that offers its citizens double protection. They can participate in
free elections and thus indirectly contribute to the decision-making of political issues
rule of law guarantees the protection of citizens against those in power, even when these are elected representatives
a constitutional state is therefore a state in which citizens have basic rights and are protected against the power and
arbitrary action of the government. This is the basis of the rule of law and protects us from arbitrary action and abuse of
power.
trias politica, basic rights and the principle of legality together form the basis of the rule of law
fundamental concept -> kings had absolute power and ruled as they please (course of 17th - 18th century)
the sun king, Louis XIV -> l'etat, cést moi (I am the state) -> he had the power, did not have to share it -> sometimes
fired ministers for purely personal reasons (jealousy when they got too rich) -> French philosopher Montesquieu wrote in
1748 that in order to counterbalance the power of the king, a parliament elected by the people must be formed -> they
can make laws, enforce laws is the task of the king and ministers. Moreover, an independent judiciary must also be
established for both powers -> trias politica / “separation of powers”
trias politica = king, parliament & judiciary
ideas of 2 philosophers led to American Revolution (1776) -> call to insurrection: 'no tax without representation' -> those
who had to pay taxes also had to be able to elect representatives in the British parliament -> soon after french revolution
(1789) -> slogan: 'liberty, equality and brotherhood' -> wanted to end absolute power of monarchs -> today kings in a
constitutional monarchy are obliged to respect the constitution + the rule of law has ensured constitutional protection of
fundamental rights -> freedom of religion, expression
fundamental rights are rights that are so fundamental to the freedom, personal development, well-being, and protection
of the individual and of groups that they are enshrined in the constitution
1. According to the principle of legality, the government may only restrict the freedom of citizens if those
restrictions are already laid down in law and apply to everyone
2. administrators are required to act in accordance with the rules and regulations of the rule of law, they are found
to abide by laws and cannot impose excessive penalties on a whim without the intervention of an independent
judge.
3. Even an elected majority cannot do what they want; they must always take into account the legal rights of
minorities
with these 3 principles, the concept of rule of law is the exact opposite of that of a dictatorship -> one ruler / party
decides what the rules should be (China, North Korea and Iran)
In the twentieth century there were many fascist dictatorships in Eastern Europe -> concept of the rule of law
immediately after the Second World War was topical again
• 1948: United Nations established Universal Declaration of Human Rights (UDHR)
• 1950: European countries in Rome founded the European Convention on Human Rights (ECHR)
both treaties played an important role in improving human rights and raising awareness of them. Without human rights
there is no rule of law and where human rights are violated, the rule of law is threatened.
, the rule of law is a government of rules applied by ministers, police, lawyers, mayors and their councilors, so civil
servants can occasionally go wrong -> suspects sometimes complain about their treatment by the police -> when
injustice is experienced , the concept of the rule of law comes back into focus
often associations are made with concepts such as: "fear", "transgression", "death" etc. this shows that the rule of law
sets the absolute limit of what is legally permitted in situations, events, decisions and actions. That is why the rule of law
is the standard by which we assess government performance: which actions are allowed and what are absolutely
excluded. As lifestyles and beliefs become increasingly diverse, the rule of law becomes increasingly important as a
norm.
law
How did the rule of law emerge?
What characterizes a constitutional state?
government must act when citizens use violence against each other -> government does not have a free hand: the
Netherlands is a democracy based on the rule of law and that offers its citizens double protection. They can participate in
free elections and thus indirectly contribute to the decision-making of political issues
rule of law guarantees the protection of citizens against those in power, even when these are elected representatives
a constitutional state is therefore a state in which citizens have basic rights and are protected against the power and
arbitrary action of the government. This is the basis of the rule of law and protects us from arbitrary action and abuse of
power.
trias politica, basic rights and the principle of legality together form the basis of the rule of law
fundamental concept -> kings had absolute power and ruled as they please (course of 17th - 18th century)
the sun king, Louis XIV -> l'etat, cést moi (I am the state) -> he had the power, did not have to share it -> sometimes
fired ministers for purely personal reasons (jealousy when they got too rich) -> French philosopher Montesquieu wrote in
1748 that in order to counterbalance the power of the king, a parliament elected by the people must be formed -> they
can make laws, enforce laws is the task of the king and ministers. Moreover, an independent judiciary must also be
established for both powers -> trias politica / “separation of powers”
trias politica = king, parliament & judiciary
ideas of 2 philosophers led to American Revolution (1776) -> call to insurrection: 'no tax without representation' -> those
who had to pay taxes also had to be able to elect representatives in the British parliament -> soon after french revolution
(1789) -> slogan: 'liberty, equality and brotherhood' -> wanted to end absolute power of monarchs -> today kings in a
constitutional monarchy are obliged to respect the constitution + the rule of law has ensured constitutional protection of
fundamental rights -> freedom of religion, expression
fundamental rights are rights that are so fundamental to the freedom, personal development, well-being, and protection
of the individual and of groups that they are enshrined in the constitution
1. According to the principle of legality, the government may only restrict the freedom of citizens if those
restrictions are already laid down in law and apply to everyone
2. administrators are required to act in accordance with the rules and regulations of the rule of law, they are found
to abide by laws and cannot impose excessive penalties on a whim without the intervention of an independent
judge.
3. Even an elected majority cannot do what they want; they must always take into account the legal rights of
minorities
with these 3 principles, the concept of rule of law is the exact opposite of that of a dictatorship -> one ruler / party
decides what the rules should be (China, North Korea and Iran)
In the twentieth century there were many fascist dictatorships in Eastern Europe -> concept of the rule of law
immediately after the Second World War was topical again
• 1948: United Nations established Universal Declaration of Human Rights (UDHR)
• 1950: European countries in Rome founded the European Convention on Human Rights (ECHR)
both treaties played an important role in improving human rights and raising awareness of them. Without human rights
there is no rule of law and where human rights are violated, the rule of law is threatened.
, the rule of law is a government of rules applied by ministers, police, lawyers, mayors and their councilors, so civil
servants can occasionally go wrong -> suspects sometimes complain about their treatment by the police -> when
injustice is experienced , the concept of the rule of law comes back into focus
often associations are made with concepts such as: "fear", "transgression", "death" etc. this shows that the rule of law
sets the absolute limit of what is legally permitted in situations, events, decisions and actions. That is why the rule of law
is the standard by which we assess government performance: which actions are allowed and what are absolutely
excluded. As lifestyles and beliefs become increasingly diverse, the rule of law becomes increasingly important as a
norm.
