As mentioned as above, under rule of law everyone shall be fair and equal in front of law. One of the important element In Raz’s principle is the independence of judiciary has to be guaranteed. This showing the judicial independence is the fundamental structure of the idea rule of law. In case M v Home office, it implies that even though the individuals representing the executive, the courts still have power to grant remedies against a minister in his office capacity. The courts are armed with coercive powers exercisable in proceedings for contempt of
The approach states that a human right is not qualified by any legal instrument or any institution. The moral theories focus on the universality of human rights despite our various backgrounds such as race, culture, religion or geographical boundaries. They further elaborate that human beings owe each other respect that cannot only be defined by international human rights instruments but by the fact that one is human. Jerome Shestack; in his paper ‘Philosophical foundations of Human rights’, explain theology as a source of human rights. He said that Theology states that human rights stem from a higher law than the state, The Supreme being.
Thus the law “you will not stand on the blood of your neighbor” is valid because it protects the natural right that an individual has to life. On the other hand Aquinas believes that the validity of a law is rooted in the divine principles that underlie the law. Natural law consist of an ethical aspect, which are the moral principles only known to God as well as a legal component which is the expression of these moral principles within the human legal system . According to Aristotle these moral principles, which exist on the eternal level of law, are the basis of the laws that are created on the human level. In the adoption case Justice Dornor asked whether a person enjoys the fruit of a forbidden act in order to illustrate the moral principles underlying our laws .
Natural law theory states that there are laws that are immanent in nature and the man made laws should correspond as closely as possible. Man can’t produce natural laws but he can find and discover through his reasoning. If a law is contrary to a natural law then it is not a law. Laws should be related to morality. It is a concept of a body of moral principal that is same for all the man and it can only be find through human reasoning alone.
“Do good and avoid evil” is a result of the differing educational, religious and cultural influences on man in the various times and places of his historical development. Thomas Aquinas contended that general principles of the natural law cannot be applied to all men in the same way on the great variety of human affairs, thus arises the diversity of positive laws among various people. Human laws deal with changing and contingent matters and often with singulars, do not have the certitude that belongs to the speculative sciences. Each has its own realm of operation and is sufficient that each have the certitude proper to its own realm. [ Ibid. ]
Aquinas argued that ‘every human law has just so much of the nature of law, as it is derived from the law of nature,’ but adds, ‘if any point it deflects from the law of nature, it is no longer a law but a perversion of law’. To Aquinas, human reason is fallible and prone to mistakes; human law ‘cannot have that inerrancy that belongs to the demonstrated conclusions of the sciences’. [ See n.2.] He repudiates the thesis that a law is a law merely because it has been decreed by a sovereign. He suggested that a rule can only become ‘law’ only if it has has appropriate moral dimensions.
These laws carry with them the power and authority of the enactor, and associated penalties for failure or refusal to obey. Law derives its legitimacy ultimately from universally accepted principles such as the essential justness of the rules, or the sovereign power of a parliament to enact them. Law is a description of a direct link between cause and effect of a phenomenon deduced from experiments and or observations. Law is a binding custom or practice of a community. Law is a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority.
In the medieval, the English jurist Edward Coke asserted that king must be under God and law. The modern concept of the rule of law is fairly wide and sets up ideal for any government to achieve and was developed by the International Commission of Jurists, known as Delhi Declaration, 1959. According to this the rule of law implies that the function of the Government in a free society should be so exercised as to create condition in which dignity of man as an individual is upheld. “Rule of Law” is to be understood neither as a “rule” nor a “law”. It is generally understood as a doctrine of “state
He demands that political power must be derived from the consent of the governed and not be “the product only of force and violence,” and to protect men ensuring that they will no longer be ruled by “beasts” (Locke 7). The Palace of Versailles is a visual representation of the belief that in some ways King Louis XIV was an agent of God—that he was connected to Him in some fundamental way—and thus God sanctioned his actions and his rule and none of his subjects could interfere with it; as such, King Louis XIV only answered to God. John Locke’s argument is rooted in a belief in God’s inherent power over man and His rules imposed through nature. However, the conclusion of Locke’s argument differs in form and function. Rather than giving a single man power through God, like a king, he shows in his arguments for freedom and liberty that men are controlled by God’s laws of nature and government can only gain control over them through their freely given
Even though people are, according to Locke, naturally free and thus have no duty to obey others, the fact that people adhere to their government’s respective laws means that they have consented to those same laws of the sovereign that rules over them. Consenting to the government is not often expressed by citizens, either in verbal or written form. By joining a body politic under a legitimate government, one displays a moral duty to tacitly obey the laws of their government. A legitimate government can be defined as a body of power that respects the natural rights of men and adheres to the laws of nature, while simultaneously providing guidance for the people that it carries power over. In return, the body politic must observe the laws that the government sets, respecting their legitimacy.