The building block of any democratic society is the Rule of law. As I discussed in the previous blog for us to have a proper function society it is important that laws are enforced and contracts based on laws are also followed. The main aim of making laws is to maintain law and order in society and to develop and maintain peace. Rule of law plays a very big part of that, Rule of law in simple terms is where the government rules are based on principles of law. So whether rich or poor, weak or strong in a broader context everyone is the same under the law. Separating the person from the law is one of genius aspects of the Rule of Law, meaning there are certain behaviors that are expected from an individual in public office that is not expected from an ordinary person.
The idea of the rule of law can be dated back as far as the 13th century, judge in the reign of king Henry III wrote ” The King himself ought be subject to God and the law, because the law makes him king” And then there is Magna cater 1215 which essentially cemented the idea of the king being under law. “[The rule of law] will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared and unquestioningly accepted by the majority.” Friedrich Hayek
In western democracies we have three arms of the government, we have the legislature, executive, and judiciary. The legislature elected by people makes the laws, the executive executes and the judiciary interprets the laws. The three arms give checks and balances and this is what keeps the government accountable. The legislature is an elected group of people, in a democracy, they are elected by the people. In a perfect world, the laws should reflect what the people want. So then the question is everything that is legal also moral? and where do we as a society get our morals from that intern are reflected in-laws thereby binding us together.
I think democracy is beautiful when it works but when it does not we get leaders Hitler, In the two years leading up to his appointment as chancellor. Hitler managed to increase his party’s representation in parliament. That is probably why when he was given temporal power after the parliament burnt down it was easy for him to pass anti-Jewish laws and other laws through the enabling act. After he was in power he then appointed members of the Reich to key government position like the supreme court and Germany law review. Judges that were sworn to office swore a pledge of allegiance to Hitler and not the Law, this ensured that Hitler had control over the judiciary. So we can say legally whatever Hitler did to the Jews it was within his Legal boundaries. In fact, that was the problem prosecutors at the Nuremberg trials had to deal with, there was no standard of international laws that gave provisions to prosecute crimes committed within a country by the government of that country. Hitler, in my opinion, rose at the backs of what the Majority of the Germans where feeling, because his party was democratically elected.
“The Tribunal, therefore, cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which was also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity”- from the Nuremberg Trials.
Up until the 1920 women were not allowed to vote by law in America and many other parts of the world. Aboriginal people were not allowed to vote in Australia until 1962. It took more than four decades for Women to be awarded the same rights as Men under the Law. After the emancipation of slaves in America, the deep south enacted vagrancy laws or Black codes, some of the laws that were on the books were; if a Black Man is walking one way and sees a white Woman walking the same way, a black man should move across the road. Blacks were not even allowed to make eye contact with white Women back then, it was even illegal to be unemployed. Vagrancy laws allowed authorities to arrest people for minor offenses.
Finally, just because Laws are in the books does not mean they are the right thing or moral thing to do. As a society we need to distinguish what is legal and what is moral, Hitler’s treatment of the Jews was legal under Germany’s laws, morally it was pure evil. Vise versa you can do acts that are moral but illegal under the law. Germany shows us just how fragile a democracy can be.
Teacher, Law. (November 2013). Origin And Concept Of Rule Of Law Administrative Law Essay. Retrieved from https://www.lawteacher.net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-law-administrative-law-essay.php?cref=1