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Unlawful acts can be withdrawn within a reasonable time if the institution has considered how far the applicant might have relied on the measure's lawfulness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: ManifestErrorofAssessment (error of manifeste d'appreciation)