Week 11

• Substantively, very few people think governments should be allowed to do whatever they want all the time
• Some limits on how much governments can do, even if they do it procedurally correctly
• The Rule of Law involves courts acting as a check on the worst excesses of government
• Motivations for substantive principles include challenging incorrect, unjust, or unreasonable governmental decisions
• Decision-makers need to understand the limits of governmental powers
• According to Bignami, substantive principles fall into three strands: Rule of law, Protection of Basic Liberties, and Policy Rationality
• The Rule of Law requires that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made
• The administration must refrain from violating the law, including the basic rights of individuals
• Sovereignty lies with the people, and governments have only the powers given to them
• Legal limits on government actions are necessary
• Governments should only be able to act where they have the legal power to do so
• The Rule of Law in France includes elements like incompetence and violation of the law
• In England, the Rule of Law includes illegality, which means the decision-maker has acted outside of their authority
• The Rule of Law in the US involves exceeding statutory jurisdiction, authority, or limitations
• Comparison of the Rule of Law in different countries shows variations in approaches and grounds for review
• The Rule of Law in the EU includes subconcepts like the principle of Legal Certainty and the protection of Legitimate Expectations
• Lawful acts, in principle, cannot be revoked
• Unlawful acts can be withdrawn within a reasonable time if the institution has considered how far the applicant might have relied on the measure's lawfulness
• The Principle of Legitimate Expectations is a general principle of EU Law, requiring justifiable reliance, affected interest, and prioritizing the protection of expectations over the Union's interest
• Protection of Basic Liberties involves defending rights against administrative actions, such as freedom of expression, association, privacy, human dignity, personal liberty, and the right to engage in trades
• In the UK, the Human Rights Act (2001) obligates interpreting the law compatibly with the ECHR, distinguishing between qualified and unqualified rights
• In Germany, measures interfering with rights must pass the proportionality test, ensuring they achieve public ends, are necessary, and the public benefit outweighs the burden to individual rights
• In the US, different levels of judicial scrutiny exist, including rational basis, strict scrutiny, and intermediate scrutiny, depending on the severity of restrictions on fundamental rights
• Policy Rationality involves evaluating administrative action based on criteria related to sound policymaking, such as 'Wednesbury Unreasonableness' in England and 'Arbitrary and Capricious' in the US
• In France, the concept of manifest error of assessment is used to evaluate administrative decisions, trending towards proportionality
• Politcal rationality:

  • France: Manifest Error of Assessment (error of manifeste d'appreciation)
  • US: Arbitrary and Capricious
  • England: Wednesbury Unreasonableness
• Protection of basic liberties

  • Germany: Proportionality, Equality, Legitimate expectations
  • US: Rational basis test, Intermedate Scrunity Test, Strict Scrutiny Test
  • UK: ECHR Rights
• The Rule of law Comparative Analysis

  • France: Incompetence, Violation of law
  • US: Excess of statutory jurisdiction, Short of statutory rights
  • UK: Illegality
• Rule of law is not just rule of laws, but the sense that courts should act as a check on the worst excesses of government
• Requirement of the Rule of Law: Legality Principle