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Constitutions, law and judges - The law

4 important questions on Constitutions, law and judges - The law

Characteristics of rule of law?

- Rule of law, not rule of men
- State is obliged to treat citizens equally in legislation, when they formulate and implement laws.

What are the mechanisms that ensure the rule of law?

- Constitution
> control of power through institutional design
> checks and balances and/or diffusion of power

- Independent and impartial judiciary

- Due process
> Law established in advance
> innocent until proven guilty
> no arbitrary arrest
> no inhumane treatment
> fair, speedy and public trial

What is legal positivism?

A theory that defines law not in terms of its conformity to higher moral or religious principles, but in terms of the fact that it was established and enforced: the law is the law because it is obeyed.

(Primary rules: regulate social behaviour and can be thought of as the 'content' of the legal system (criminal law f.e).
Secondary rules: rules that confer powers on the institutions of government. They lay down how primary rules are made, enforced and adjudicated).

How do liberals view law?

It has a neutral character and is 'above' politics. A strict separation between law and politics must be maintained to prevent the law favoring the state over the individual, rich over poor etc.
This is why liberals place such an emphasis on the universal authority of law, embodied in the principle of the rule of law.