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Вестник Омского университета. Серия «Право». 2014. № 4 (41). С. 121-130.
УДК 342.56
КОНЦЕПЦИЯ ПРАВОВОГО ГОСУДАРСТВА
THE CONCEPT OF LEGAL STATE*
Д. КРОШЛАК (D. KROSLAK)
Рассматривается правовое государство - одна из опорных идей, которой пытаются следовать многие государства. Исследуется аксиоматическая пара, создаваемая правовым государством и демократией, в которую могут включаться также несколько конституций. Конституция рассматривается как основополагающий конституционный стандарт. Анализируются основные аспекты правовой
государственной доктрины. Даётся обзор базовых положений, написанных с учётом обстоятельств, предопределяющих развитие правового государства.
Ключевые слова: конституция; правовое государство; государственная власть; верховенство закона; ограничения государственной власти; конституционность; легитимность; разделение властей; правовая определённость; права человека; независимость судебной власти.
Legal state is currently considered one of the supporting ideas many states try to follow. Together with democracy it often creates an axiomatic couple which can be found incorporated also in several constitutions as a fundamental constitutional standard. In this article the author tries to give brief overview of core aspects of the legal state doctrine. It is by no means exhaustive on the subject and does not resolve any of the hard questions. Rather, it is a guide to the basic issues, oriented to the circumstances and concerns of societies that are working to develop the legal state.
Key words: Rechtsstaat; rule of law; limited government; constitutionality; legality; separation of powers; legal certainty; human rights; independence of judiciary.
1. Historical Genesis of the Idea of Legal
State
The idea of a legal state dates back to ancient Greeks, who initially regarded the best form of government as rule by the best men [1].
Plato (427-347 BC) advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law [2]. Nevertheless, he hoped that the best men would be good at respecting established laws, explaining that:
“For wherever in a State the law is subservient and impotent, over that State I see ruin impending; but wherever the law is lord over the magistrates, and the magistrates are servants to the law, there I descry salvation and all the blessings that the gods bestow on States” [3].
Formulation of the idea of legal state is obvious also in the work of Aristotle (384-
322 BC). More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law: “It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws” [4].
But it took the idea of legal state a very long period to transform from this plane of outlined thought ideal into reality. Actually, the idea of legal state was forced out in modern times by the preference of a stronger centralized state, defended in the constitutional thought mainly by Jean Bodin (1530-1596) and Thomas Hobbes (1588-1679).
* Work on this manuscript was supported by the Slovak Agency for Advancement of Science and Research under the project no. APVV-0562-11.
© Крошлак Д., 2014
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1.1. Rule of Law
Creation and development of the idea of legal state occurs only from the period of bourgeois revolutions and construction of democratic constitutionalism in England [5]. The quote of the English lawyer Sir Edward Coke (15521634) who in the dispute with English king defended his opinion that not the king protects the law, but law protects the king, is quite often cited in this regard [6].
However, the English Bill of Rights of 1689 means a breach in a constitutional form into the then valid principle princeps legibus solutus (the ruler is not bound by the laws) which enables the arbitrariness of the ruler, his position above the law. The Bill of Rights set out lawful limits of ruler's authority. It defined them by the maxim “rex debet esse sub lege, quia lex facit re gem” (the king should be subject to the law for the law makes the king) as obligations established by law against the society and not as a matter of good will, as was the custom so far. This important constitutional document thus places the law above the English king and is considered to be the foundation of the Anglo-American concept of legal state (or rather the rule of law).
But one thing was lacking. There is little advantage in promulgation of laws, however benign, unless there are judges who are able to and willing to enforce them. But if the judges are to enforce law against the highest authority in the state they must be protected against intimidation and victimization. And this was not the case. However, it changed in 1701 when, in the Act of Settlement, Parliament legislated to provide for the Protestant succession to Queen Anne. This opportunity was then used and the foundation of judicial independence was laid [7].
Paradoxically, no jurist had attempted an exact definition of the rule of law until the second half of the 19th century. Up until then, no one had tried to identify the fulcrum of Great Britain’s constitutional apparatus, nor had anybody asked what it was that made this system so unequalled in the whole of Europe when it came to maintaining individual freedom.
Albert Venn Dicey (1835-1922) tackled these issues in his Introduction to the Study of the Law of the Constitution of 1885. In this work he described the workings of the English consti-
tutional system and identified the rule of law as its main pivot [8].
According to Dicey three basic tenets of the rule of law are:
1. No person is punishable except for a breach of law established in the ordinary manner before the ordinary courts of the land; this is in contrast to arbitrary power and excludes wide discretionary authority.
2. No man is above the law; that every person, whatever be his rank and condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals, or equality before the law and this excludes exemptions of officials or others from a duty to obey the law which governs citizens.
3. General principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts [9].
1.2. Rechtsstaat
Elaboration of the legal state concept in continental Europe did not come until the German liberalism at the end of the 18th century [10]. Immanuel Kant (1724-1804) is considered the ideological father of the legal state (Rechtsstaat) doctrine. Although he formally does not use the term ‘legal state’ yet, the modern theory of legal state in fact derives just from him. Kant’s approach is based on the supremacy of a country’s written constitution. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant proposed that constitutionalism and constitutional government ought to be sufficient to guarantee this happiness [11].
The ideas of legal state were further elaborated in the 19th century Germany mainly by lawyers Robert von Mohl (1799-1875), Friedrich Julius Stahl (1802-1861), Rudolf von Gneist (1816-1895) [12] and Otto Bahr (18171895) [13] and others.
The often cited quote of Stahl, according to which the legal state should “precisely and irrevocably establish both tracks and boundaries of its jurisdiction, as well as the scope of freedom of its citizens and it should not execute and directly impose moral ideas of state's paths outside law”, must be mentioned [14]. The legal state does not consist in a state’s being ultimately aimed at protecting individual rights and,
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for this purpose, constraining power and neutralizing its dangerousness. What really matters, according to Stahl, is that the Rechtsstaat is reflected not in a number of content-based limits respected by the state, but in the formal, legal manners whereby the state’s actions are taken [15].
Mohl, on the other side, believed that the rule of law was typical of a specific kind of state, namely that which suits itself to a society developing through its members’ energies and initiatives. Unlike Stahl, he thought that the state’s intervention must take in account some content-based restraints: in order for the state to be a Rechtsstaat, law must intervene by binding its action to the attainment of a specific goal -individual freedom - which did not coincide with an area protected from interferences of power but rather implied the individual personality’s complete development. Thus, even if individual freedom must be guaranteed by law and implemented by a judge, the state’s intervention should not be limited to the performance of its jurisdictional role, since a state providing no services other than the administration of justice was not feasible [16].
In 1871, after the creation of the second German Empire, the perception of legal state takes a turn. New constitutional relations were based on the acknowledged superiority of the monarchic principle which perverted the Rechtsstaat doctrine. Beginning with Karl Friedrich von Gerber (1823-1891), passing through Paul Laband (1838-1918) up to Georg Jellinek (1851-1911), the conception of Rechtsstaat underwent a profound transformation that marked the definitive defeat of the liberal standpoint [17].
The development in Germany between two world wars significantly affected other theoretical perceptions of legal state. One of the questions arising in this regard is whether the Third Reich (1933-1945) was a legal state. Basically the issue is whether there is connection between that state and Weimar Republic:
On January 30, 1933, Hitler was appointed the Chancellor of Germany under the Weimar constitution. On February 28, 1993, he convinced the old president Hindenburg that Germany is on the threshold of state of emergency, underlined by the fire in Reichstag on the previous day. Hindenburg, using his constitutional
authority, issued the "Decree of the Reich President for the Protection of People and State". Significant parts of Weimar constitution concerning fundamental freedoms thus lost its force and persecution of political opposition became possible. Such deprivation of force of fundamental rights by declaring the state of emergency was "temporarily" admissible under article 48 of Weimar constitution.
Persecution of political opponents (mainly communists), which had the impression of legality, began to be directed also against the members of Reichstag after Reichstag elections on March 5, 1933. (Hitler got more than 40 % of votes but not majority.) The political opponent was thus successfully decimated and intimidated. So the decisive action could come from the top. On March 23, 1993, the Reichstag adopted the "Law to Remedy the Distress of People and Reich" (Gesetz zur Behebung der Not von Volk und Reich). This law eliminated the constitution with dry formulations. Article 1 stipulated: "Laws of the Reich may also be enacted by the government of the Reich". Article 2 stipulated: "Laws enacted by the government of the Reich may deviate from the constitution of the Reich." This law became effective through its declaration on March 24, 1933 and should be effective until April 1, 1937.
But Hitler renewed his power every four years until the end of Third Reich. Therefore, voting in 1933-1945 can be hardly questioned. Some theorists consider Hitler's dictatorship constitutional from technical point of view as well as from narrowly positivistic point of view. Legislature and courts continue to operate despite the fact that the law was brutally manipulated during the whole period to serve narrow interests of the party [18].
Before Hitler's rise to power the Austrian legal scholar Hans Kelsen (1881-1973) came with the idea of distinguishing between the legal state in formal and material sense. According to him the legal state in formal sense is every state governed by law regardless of its content. On the other hand, the legal state in material sense is every state whose laws contain legal institutions, such as democratic legislature, binding force of executive acts of the head of state in connection with countersignature by respective minister, civil rights of subjects, independence of courts, administrative judicial system, etc [19].
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This distinction gained importance in the context of described development and it was also reformulated. The event of World War II showed how important it is with regard to state's existence to pay attention to value foundations of content of laws. Naturally, a basic requirement was to ensure respect for human rights. Many authors still consider that as key part of legal state in material sense [20]. Understanding was changed also in case of legal state in formal sense: state that recognizes as crucial the separation of powers, independence of judiciary, legality of public administration, legal protection against abuse of power and public law redress, is considered a legal state in formal sense [21].
1.3. Rule of Law and Rechtsstaat - common core
As Michel Rosenfeld writes, both concepts certainly share certain important elements in common: "Chief among these, is the relationship between the state and the institutionalization of a legal regime or, in other words, the state's duty to wield its power through laws and in accordance with fundamental principles of legality ... Beyond that, however, the two concepts differ significantly, particularly in terms of their understanding of the relationship between the state and the law. Whereas as we shall see, the American conception of the rule of law is rooted in a somewhat antagonistic relationship between the state and the rule of law ... its German counterpart is squarely predicated on a veritable symbiosis between the law and the state. In the broadest terms, in the Rechtsstaat law becomes inextricably tied to the state as the only legitimate channel through which the state can wield its power. Accordingly, “state rule through law” would be a much better approximation in English for “Rechtsstaat” than “rule of law” [22].
2. Principles of Legal State
Although there is no general consensus on exact definition of basic, immanent features of legal state in legal theory and individual features cannot even be strictly separated from each other, it is possible to set apart as most important mainly the following:
1) limited government principle,
2) principle of constitutionality and legality,
3) separation and control of powers,
4) guarantees of fundamental rights and freedoms,
5) legal certainty,
6) independence of judiciary [23].
2.1. Limited Government Principle
The principle of limited government is derived from Anglo-American rule of limited government [24], which is understood in broader sense than just a requirement for limiting the activity of government or the executive power. (Self)limitation of power as a whole, all its elements (including legislative power) is required to make it function to the benefit of citizens.
A legal state in this sense is such state which establishes binding limits of its power interference into citizens' life for itself through law. The regulation (constitutional or legal) defining the scope of state's activity at the same time must be explicit to prevent development of arbitrariness and to check the natural expansiveness of state power.
Law is not given to the state in advance; it can create, change and abolish it. The state itself thus decides how and to what extent it will limit its power. In this way it provides individuals and society with security, predictability of power interferences, mainly state coercion and finally it leads to limitation of the use of force.
State power limitation with regard to citizens is usually incorporated in constitutions of democratic states in such way that citizens are allowed to do everything that is not prohibited by law, whereas the public authorities can act only on the grounds of the constitution, within its limits and scope and in the way defined by law (see e.g. Article 2 (2) and (3) of the Constitution of the Slovak Republic).
2.2. Principle of Constitutionality and Legality
The principle of constitutionality and legality is considered a cornerstone principle of a legal state. Quite often the understanding of a legal state, which is usually called a legal state in formal sense in contemporary theories, is narrowed down to this principle [25].
Constitutionality in formal sense means the requirement for strict observation of constitution and compliance of laws and subordinate legislation, exercise of power as well as rights and obligations with the constitution. Constitutionality in material sense is the right for constitutional guarantee of fundamental rights and freedoms, as right to constitution.
Legality means that law is generally binding and all subjects of laws have unconditional
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legal obligation to observe law in force. Therefore, in a democratic society the requirement to observe law shall be applied also to state authorities, including those creating the law. Even the parliament as the supreme representative of state's sovereignty, legitimized by elections, must observe constitution and procedural regulations created by itself in the process of creating and changing laws.
This requirement is formulated as the principle of state authorities bound by valid laws.
Even though state authorities create law, as if it emancipated after its creation from its creator and binds him equally as other subjects. Certain independence, separation of the life of law from the states shows also in that the legal standard lasts even after the body it adopted changes or ceases to exist.
State authorities shall be bound by strict legal rules also when exercising coercion. Thus they cannot willfully exercise any coercion but only such that is executed in cases defined by law in advance and in a way described by law. Law protects in this way the scope of freedom which cannot be interfered with by any coercion not substantiated by law.
2.3. Principle of Separation and Control of Powers
One of the oldest and still current questions concerning the exercise of power is: how to prevent concentration and abuse of power and how to efficiently control power or its exercise? [26]
Answers can be found already with several ancient authors. For example, Aristotle in the Athenian constitution distinguishes between making resolutions, commanding and judging. Polybius even proposes to divide the supreme power and to have individual powers separated and balanced to such extent so as "no one would dominate the others and diverge but that all remained in balance as on scales, so that conflicting powers were overcome and the constitutional state be maintained for a long time" [27].
The idea of separation of powers becomes particularly attractive only under the influence of experience with absolutist monarchy where the concentration of unrestrained, unchecked power in the hands of a ruler offers real opportunity for its abuse. Here, in the 17th and the 18th century, the concept of separation of powers, connected with the names of John Locke and Charles Montesquieu, was born. It is the result
of their deliberations on how to institutionally prevent the abuse of power of unrestrained state authority, either made up by an individual or a certain group, or thus provide freedom of individuals and the society [28].
According to John Locke (1632-1704), power should be divided to legislative, executive and federative. The highest of them, although not unlimited, should be the legislative power. As he writes, "the first and fundamental positive law of all common-wealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it" [29]. The legislative power determines the rules of functioning of executive and federative power through laws. In Locke's theory the judicial power is a part of executive power. Its role should be in constant execution of laws and control of their observance. Federative power should defend the interests of citizens against foreign countries. It should solve disputes between anyone from the society and those outside of it.
Charles de Secondat Montesquieu (1689-1755) followed the ideas of John Locke. As he writes "in each state there are three sorts of powers: legislative power, executive power over the things depending on the right of nations, and executive power over the things depending on civil right. By the first, the prince or the magistrate makes laws for a time or for always and corrects or abrogates those that have been made. By the second, he makes peace or war, sends or receives embassies, establishes security, and prevents invasions. By the third, he punishes crimes or judges disputes between individuals. The last will be called the power of judging, and the former simply the executive power of the state" [30].
The essence of separation of powers theory is to ensure balance of all three powers. Only when no power has dominant position, the powers can effectively control each other, inhibit its expansion. Typically this was accomplished through a system of "checks and balances" that allows one branch of power to limit another. However, this principle was further elaborated especially by American and French constitution theorists [31].
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2.3.1. Sub-principles of Separation of Powers
There are sub-principles of separation of powers which apply with a different degree worldwide. These include:
• separation and division of power into three branches,
• their independence,
• incompatibility,
• mutual unaccountability and nonsubordination,
• balance of all three branches,
• their mutual cooperation or competition with the mechanism of mutual control [32].
The principle of mutual independence of
individual powers is represented by the independence of individual powers with regard to their creation. It means that one power should not create another (e.g. the president of the USA as a head of executive power is not elected by the parliament; the election is an indirect vote in which citizens cast ballots for a slate of members of the U.S. Electoral College; these electors in turn directly elect the President).
As opposed to parliamentary systems with its constitutional and political accountability of the government to the parliament, such accountability is not being applied within the separation of powers system in the presidential republic. Individual powers are therefore mutually politically unaccountable and are not subordinated to each other [33].
Powers are incompatible to be held in the hands of one state official. He/she can exercise his/her office only within one element of power. For example, in the Slovak Republic the member of government cannot be a member of parliament or judge during his term.
Separation, independence, unaccountability and incompatibility of legislative, executive and judicial power are in term of separation of powers theory, however, not safeguard against the possibility of willful abuse of power within individual powers. They do not eliminate the possibility of any of branches gaining dominance, its own uncontrollability and control over other powers. Therefore, the most important principle of the system of separation of powers is the mechanism of mutual control, checks and balances. Hence constant tension should be between individual branches, whole network of control mechanism, ensuring that no power has the chance to significantly tip the scales to its
side at the expense of other powers for a longer period. In the end this means that even though the highest representatives of individual branches (president, parliament, judiciary) are still separated, independent and individual bodies, at the same time each of them should act as a check and balancing agent against the other two. None of the powers thus can adopt a final decision without certain form of cooperation (control, consent or eventually support) with a body of another power.
Consistent application of separation of powers theory is constitutionally incorporated in the presidential form of government of the United States of America. Continuously it spread with certain modifications into countries of South America, East Asia and former Soviet Union. In continental Europe the prevailing system of democratic states is the parliamentarian-ism with characteristically dominant position of parliament. In spite of that the distinctive elements of the separation of powers are gradually exerting in constitutions of European parliamentary states (including the Slovak Republic).
2.3.2. Vertical Separation of Powers
The power in state is separated, apart from horizontal separation (i.e. at the level of highest state authorities), also vertically - between central (federal, national) and local authorities. Vertical division of power in state depends on the vastness of territories of modern states, which cannot be efficiently controlled from one centre. At the same time, territorial scope and scope of jurisdiction of individual territorial units of the state can be different.
However, vertical separation of powers may be present also in supranational structures. In particular, the European Union's working according to the principle of subsidiarity shall be mentioned. The principle of subsidiarity aims at determining the level of intervention that is most relevant in the areas of competences shared between the EU and the Member States. This may concern action at European, national or local levels. In all cases, the EU may only intervene if it is able to act more effectively than Member States.
2.3.3. Internal Separation of Powers
The term internal separation of powers is also used in theory and practice. It is separation and mutual balancing of power within one state authority. For example, the system of two cham-
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bers (the House of Representatives and the Senate) within the parliament of the USA, where the law to be adopted must win competent majority in both houses of Congress.
2.3.4. Control Power
In today representative democracies, where the people are represented in the decisionmaking processes mainly by their elected representatives who often represent rather the interests of political parties or their own interests and not the public interest, the existence of fourth element of power - control, is needed more and more. Today, control is considered by many theorists as the highest value of democracy.
In this context, inspiring for the reformulation of the three branches separation of powers in many Western countries may be the separation of powers in the Republic of China. According to Sun Yat-sen's idea of separation of the five powers, the government has five branches or Yuan (|%): the Executive Yuan, Legislative Yuan, Judicial Yuan, Examination Yuan, and Control Yuan. The Control Yuan (SSK) is an investigatory agency that monitors the other branches of government. It may be compared to the Court of Auditors of the European Union, the Government Accountability Office of the United States, a political ombudsman, or a standing commission for administrative inquiry.
2.4. Guarantees of Fundamental Rights and Freedoms
The priority of rights and freedoms of citizens and society against the state is specific for the legal state. Human rights and freedoms are the most important subjective rights that are today guaranteed internationally and constitutionally [34]. However, such guarantees were not common in the past: international enforcing mechanisms of respecting human rights appear within the Western civilization area only after World War II, in states of former Soviet bloc only after the fall of individual totalitarian regimes.
Human rights can be classified and organized in a number of different ways. At an international level the most common categorization of human rights has been to split them into civil and political rights, and economic, social and cultural rights. Another categorization, initially proposed in 1977 by the Czech jurist Karel Vasak, is that there are three generations of human rights: first-generation civil and politi-
cal rights (right to life and political participation), second-generation economic, social and cultural rights (right to subsistence) and third-generation solidarity rights (right to peace, right to clean environment) [35].
First generation of human rights is represented mainly by personal freedom, civil and political rights. These are rights that serve negatively to protect the individual from excesses of the state. They were pioneered by the United States Bill of Rights (1791) and in France by the Declaration of the Rights of Man and of the Citizen (1789), although the right to due process goes back to the Magna Carta (1215). They were enshrined at the global level and given status in international law by the United Nations international documents, specifically in the Universal Declaration of Human Rights of 1948, European Convention for the Protection of Human Rights and Fundamental Freedoms of the 1950 and the International Covenant on Civil and Political Rights of 1966.
Unlike with the first-generation rights and freedoms connected with the state's obligation not to interfere with defined space of individual freedom, in case of the second-generation rights the activity of state is expected. It is the so-called positive obligation, based on which the state should adopt measures which enable exercise of these rights. The development of rights of the second generation is characteristic mainly for the period after World War II. Important international documents incorporating social right are mainly: The Universal Declaration of Human Rights of 1948 and International Covenant on Economic, Social and Cultural Rights of 1966, which were adopted on the ground of the UN. For Europe, it is mainly the European Social Charter of 1961. Extent of their incorporation in constitutions of individual states depends on each state.
The third generation of human rights emerges significantly later than the previous two. Whereas the first two generations of human rights present individual rights, the third generation consists of collective rights, rights reflecting the effort of joint solution of humanity's global problems. It is obvious from the basis of these rights that to ensure their protection certain form of participation and cooperation of multiple individual actors and states is required. Exertion of these rights exceeds state borders and in many cases
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also the borders of regions or continents. But state sovereignty, controversial nature of these right and different economic conditions in different states are obstruction in incorporation of these rights in international treaties. Therefore, the third-generation rights are included in nonbinding ("soft law") documents only, such as the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) of 1972 and the Rio Declaration on Environment and Development of 1992.
The second and third generation of rights have their advocates as well as critics. The most prominent critics include the representatives of liberal movement, such as F. Bastiat [36] or F. A. Hayek [37]. On the other hand, one of the prominent advocates of the second-generation rights is J. Waldron [38].
2.5. The Principle of Legal Certainty
Law, through establishing clear, predetermined and generally knowable rules and its consistent execution, allows to recognize what actions are required from us, what actions can we expect from others, mainly from state authorities. It allows predicting the results of actions and thus it provides subjective certainty to individuals that law will be complied with against them, that justice will be served in specific cases. Legal certainty is therefore certainty provided to us by law, its confidence in law.
Partial principles, specifying the principle of legal certainty, are:
1) actions of state authorities must be predictable within some limits to the citizens and thus possible to be estimated;
2) laws should be formulated clearly and unambiguously to allow for the citizen to get an idea about the legal situation; this implies that the legislator should be using vague legal terms and general clauses minimally;
3) laws should not be retroactive (so-called prohibition on retroactivity), i.e. they should not introduce into laws upon becoming effective specific rights and obligations that are treated as if they were valid already in the past; it is necessary to add in this context that it should be distinguished between true and false retroactivity -as for true retroactivity, the later legal regulation does not recognize rights and obligations acquired during the validity of previous legal regulation; as for false retroactivity, the rights and obligation acquired under previous legal regula-
tion are recognized, however these relations are assessed according the new legal regime since the new regulation became effective, thus rights or their content can be changed or new right introduced.
2.6. Independence of Judiciary
Judges in a legal state are independent in the performance of their office and are bound only by law in taking decisions. The concept of independent judges has two roots. It stems from the neutrality of judge as a guarantee of just, impartial and objective proceedings (trial) and of securing rights and freedoms of individual by the judge who is protected from political power.
Worldwide it may be different, so further we will focus on outcomes of the Slovak theory concerning judicial independence. In particular, we can distinguish between three types of judicial independence:
• personal independence - the judge has his profession guaranteed by law with the freedom to apply for judicial profession, he cannot be removed (or more precisely, he can be removed only in extreme cases, e.g. if he commits a willful crime) nor transferred.
• organizational independence - courts are strictly separated from the administration (executive power, government); also it is inadmissible for a legislative body to exercise judicial power;
• functional independence - interference with the functions of judiciary by other element of public power is prohibited, including influencing trials, revocation of judgments by executive bodies or by implementing retroactivity of laws governing trial proceedings or merits of crimes by legislative power.
Moreover, the condition of judicial independence is also the professionalism of a judge, his/her impartiality and judicial ethics. With regard to professionalism, the fact that the judicial profession is performed by lawyers with university degree with particular specialization, confirmed by professional exam, is not sufficient for the judicial profession. Also preparation for every particular decision is important and not only with regard to the knowledge or relevant legal regulation but also other expert information that are necessary to pronounce qualified judgment.
The impartiality of the court and the judge is basic condition for objective and just decision.
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Impartiality is the state of judge's internal openmindedness toward the case, his conviction that he is not influenced in favor or against any of the parties to proceedings, which could affect his decision.
Judicial ethics is the manifestation of nonlegal rules of conduct of a judge in his profession, which has also considerable importance. Though, a judge is also led by his moral sentiment, conscience and knowledge in making decision. Ethical codes of judiciary profession exist in many states to make the decision making and finding justice for judges easier.
1. For details see: Miller F. D. The Rule of Law in Ancient Greek Thought // Sellers M., Tomaszewski T. (eds.). The Rule of Law in Comparative Perspective. - Dordrecht : Springer,
2010. - P. 11 et seq. ; Tamanaha B. On the Rule of Law: History, Politics, Theory. - Cambridge : Cambridge University Press, 2004. - P. 7 et seq.
2. Clarke D. The many meanings of the rule of law // Jayasuriya K. (ed.). Law, Capitalism and Power in Asia. - London : Routledge, 1999. -P. 24.
3. Plato. Laws. - 715 d.
4. Aristotle. Politics. - 3.16.
5. For details see: Tamanaha B. Op. cit. - P. 28 et seq.
6. „...that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege [That the King ought not to be under any man but under God and the law.].“ 12 Co Rep 64, 77 ER 1342, [1607] EWHC KB J23.
7. Cf. Bingham T. The Rule of Law. - London : Penguin Books, 2011. - P. 24-25.
8. Cf. Santoro, E. The Rule of Law and the “Liberties of the English”: The Interpretation of Albert Venn Dicey // Costa P., Zolo D. (eds.). The Rule of Law: History, Theory and Criticism. -Dordrecht : Springer, 2007. - P. 161.
9. See: Dicey A. V. Introduction to the study of the law of the constitution. - London : Macmillan and Co., 1889.
10. For details see: Gozzi G Rechtsstaat and Individual Rights in German Constitutional History // Costa P., Zolo D. (eds.). Op. cit. - P. 237-260.
11. See: Kant I. Metaphysik der Sitten. - Stuttgart : Reclam, 1990 ; Idem. Zum ewigen Frieden. -Stuttgart : Reclam, 1986.
12. GneistR. v. Der Rechtsstaat. - Berlin : Julius Springer, 1872.
13. Bahr O. Der Rechtsstaat. - Kassel, Gottingen : Georg H. Wigand, 1864.
14. Stahl F. J.Rechts- und Staatslehre auf der Grundlage christlicher Weltanschauung. - Tubingen : Mohr, 1878. - P. 137.
15. Costa O. The Rule of Law: A Historical Introduction // Costa P., Zolo D. (eds.). Op. cit. -P. 91.
16. Ibid. - P. 92 ; Cf. Mohl R. v. Die Polizeiwissen-schaft nach den Grundsatzen des Rechtsstaats. Erster Band. - Tubingen : Laupp, 1832. - P. 6 et seq.
17. For details see: Gozzi G Op. cit. - P. 247 et seq.
18. Brostl A. Pravny stat: pojmy, teorie, principy. -Kosice : Medes, 1995. - P. 44-45.
19. „Dabei ist eine unter „Rechts“- Staat nicht eine Staatsordnung spezifischen Inhalts, nicht also ein Staat mit ganz bestimmten Rechtsinstitutionen, wie demokratische Gesetzgebung, Bindung der exekutiven Akte des Staatsoberhauptes an Ge-genzeichnung verantwortlicher Minister, Frei-heitsrechte der Untertanen, Unabhangigkeit der Gerichte, Verwaltungsgerichtsbarkeit usw., also ein Rechtsstaat im technischen Sinne zu verste-hen, sondern ein Staat, dessen samtliche Akte auf Grund der Rechtsordnung gesetzt werden. Dieser formale Begriff des Rechtsstaats ist sogar gegen-uber dem eben angedeuteten materiellen der primare. Von einem streng positivistischen, jedes Naturrecht ausschliehenden Standpunkt aus muh aber jeder Staat Rechtsstaat in diesem formalen Sinne sein, soferne eben jeder Staat irgendeine Ordnung, eine Zwangsordnung menschlichen Verhaltens und diese Zwangsordnung, wie im-mer sie erzeugt wird, ob autokratisch oder de-mokratisch, und welchen Inhalt sie haben mag, eine Rechtsordnung sein muh, die sich stufen-weise von der hypothetisch vorausgesetzten Grundnorm aus durch generelle Normen zu indi-viduellen Rechtsakten konkretisiert.“ Kelsen H. Allgemeine Staatslehre. - Berlin : Springer, 1925. - P. 91.
20. For example, see: GamperA. Staat und Verfas-sung. Einfuhrung in die Allgemeine Staatslehre. - Wien : Facultas.wuv, 2010. - P. 231 et seq.
21. See: Schmidt-Afimann E. Der Rechtsstaat // Isen-see J., Kirchhof P. (Hrsg.). Handbuch des Staats-recht fut Bundesrepublik Deutschland. Verfas-sunsstaat. Band 2. - Heidelberg : Muller, 2004. -P. 552.
22. RosenfeldM. The Rule of Law, and the Legitimacy of Constitutional Democracy // Cardozo School of Law. - № 36. - P. 20. - URL: http:// papers.ssrn.com/paper.taf?abstract_id=262350.
23. However, in the context of certain legal system these may differ in some way. For example see: Bingham T. Op. cit. - P. 37 et seq. ; Schachts-schneider K. A. Prinzipien des Rechtsstaates. -Berlin : Duncker & Humblot, 2005.
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24. Concerning the roots of limited government see: Samples J. (ed.). James Madison and the future of limited government. - Washington, D.C. : Cato Institutite, 2002.
25. For details see: GamperA. Op. cit. - P. 229-230.
26. Further see: Vile M. J. C. Constitutionalism and the Separation of Powers. - Indianapolis : Liberty Fund, 1967. - P. 23 et seq.
27. Zippelius R. Allgemeine Staatslehre. - Mun-chen : C. H. Beck, 2003. - P. 323.
28. Ottova E. Teoria prava - Samorin : Heureka, 2006. - P. 73-74.
29. Locke J. Second Treatise of Government. - Indianapolis, Cambridge : Hackett Publishing Company, 1980. - P. 69.
30. Montesquieu Ch. S. The Spirit of the Laws. -Cambridge : Cambridge University Press, 1989. - P. 156-157.
31. See: Vile M. J. C. Op. cit. - P. 131 et seq.
32. Further on this topic see also: Moellers Ch. The Three Branches: A Comparative Model of Separation of Powers. - Oxford : Oxford University Press, 2013.
33. Beyond this general statement, parliamentary systems vary widely. See: Claus L. P. Separation of Powers and Parliamentary Government // Amar V D., Tushnet M. V (eds.). Global Perspectives on Constitutional Law. - Oxford : Oxford University Press, 2009. - P. 48.
34. For details see, e.g. Alston Ph., Goodman R. International Human Rights. - Oxford : Oxford University Press, 2012.
35. See: Vasak K. Human rights: s thirty-year struggle: the sustained efforts to give force of law to the Universal Declaration of Human Rights. NESCO Courier 30:11. - Paris : UNESCO, 1977.
36. E.g. following quote of Bastiat's work The Law is being often cited in this regard: "Mr. de Lamartine once wrote to me thusly: “Your doctrine is only the half of my program. You have stopped at liberty; I go on to fraternity.” I answered him: “The second half of your program will destroy the first.” In fact, it is impossible for me to separate the word fraternity from the word voluntary. I cannot possibly understand how fraternity can be legally enforced without liberty being legally destroyed, and thus justice being legally trampled underfoot." BastiatF. The Law. - New York : Foundation for Economic Education, 1998. - P. 21-22.
37. See: Hayek F. A. The Road to serfdom. - London ; New York : Routledge, 2001.
38. See: Waldron J. Liberal Rights: Collected Papers 1981-91. - Cambridge : Cambridge University Press, 1993.
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