What Is the Difference between Rule of Law and Absence of Rule of Law

The rule of law is the key to an open market economy, as it guarantees equal opportunities for all citizens, prohibits corrupt practices by public authorities and protects companies from abuse by local authorities. Foreign direct investors are increasingly discouraged by the lack of the rule of law, as business opportunities can only be obtained by the authorities and problems arising in their business activities can only be solved with bribes. The illegal seizure of a joint venture between Singapore-based Yaung Chi Oo Trading and the regime`s Ministry of Industry in 1998 is just one example of the difficult business environment in Burma. Despite the fact that an open market economy system works superficially, Burma`s situation does not facilitate further development. Citizens do not have the same right to participate in commercial enterprises. Business licenses are mainly given to those who can pay bribes. When entrepreneurs run into problems with the authorities, there is no independent judicial system they can rely on. The problematic legal and socio-economic context complicates not only the issue of judicial protection, but also the right to private property. In order to silence the voice of the democratic opposition, the regime strictly controls the media. Currently, the media are neither accountable to the public nor able to convince the regime to advance the development of a market economy. It never criticizes the mismanagement of the authorities, nor condemns their corrupt practices. And it does not exercise the free flow of information that normally underlies market economies. The country`s economy has been affected by the absence of a market economy that promotes market-building activities and the flow of information and technical knowledge between enterprises.

The “formal” interpretation is more widespread than the “substantial” interpretation. Formalists believe that the law must be forward-looking and well-known and have characteristics of generality, equality and certainty. Apart from that, the formal opinion does not contain any requirement as to the content of the law. [36] This formal approach allows for the adoption of laws that protect democracy and individual rights, but recognizes the existence of the “rule of law” in countries where such laws do not necessarily exist to protect democracy or the rights of the individual. The best-known arguments in favour of formal interpretation have been put forward by A.V. Dicey, F.A.Hayek, Joseph Raz and Joseph Unger. Debating what the rule of law requires is partly the product of the fact that the law itself encompasses many things and people prefer different aspects of a legal system. For some, the common law is the epitome of legality; for others, the rule of law means the impartial application of a clearly formulated law; For others, the rule of law is the epitome of a stable constitution that has been rooted in a country`s politics for centuries. When Aristotle (Policy 1287b) opposed the rule of law to the rule of men, he dared to believe that “a man can be a ruler safer than written law, but no safer than customary law.” In our time, F.A.

Hayek (1973:72 et seq.) seeks to distinguish the rule of law from the rule of law by identifying the former with something more similar to the evolutionary development of the common law, less constructive and less likely to be deliberately controlled than the enactment of legislation. There is also an ongoing debate about the relationship between the law and the mechanisms of government. For some, formal discretion is inconsistent with the rule of law; For others, it depends on how discretion is formulated and allowed. For some, the final decision of a court comes down to the rule of law; For others who are aware of the politics of the judiciary, the decision of the courts (especially a politically divided court) is as much an example of human government as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies). My action can hardly be considered subject to the will of another person if I apply his rules for my own purposes, how I could use my knowledge of a natural law, and if that person is not aware of my existence or the particular circumstances in which the rules will apply to me, or the effects, that they will have on my plans. (Hayek 1960: 152) The courts play a key role in upholding the rule of law, particularly when hearing complaints from minority groups or persons representing minority views. Equality before the law is such an essential part of the U.S. system of government that when a majority, intentionally or unintentionally, violates the rights of a minority, the court may deem it appropriate to hear both sides of the controversy in court. The rule of law implies that everyone is subject to the law, including people who are legislators, law enforcement officers and judges.

[8] In this sense, it contrasts with tyranny or oligarchy, where rulers are above the law. The rule of law can be hindered if there is a gap between legal consensus and popular consensus. Intellectual property is one example. Under the auspices of the World Intellectual Property Organization, theoretically strong copyright laws have been introduced in most parts of the world; But because the attitude of a large part of the population does not respect these laws, a rebellion against property rights has manifested itself in endemic piracy, including an increase in peer-to-peer file sharing. [96] Similarly, tax evasion is common in Russia, and a person who admits that he or she does not pay taxes is not judged or criticized by colleagues and friends because the tax system is considered inappropriate. [97] Corruption also has different normative implications from culture to culture. [90] In countries such as China and Vietnam, the transition to a market economy has been an important factor on the path to the rule of law, as the rule of law is important for foreign investors and economic development. It is not clear whether the rule of law in countries such as China and Vietnam will be limited to trade issues or other areas, and if so, whether these spillovers will improve the prospects for related values such as democracy and human rights. [63] The rule of law in China has been the subject of much discussion and debate by both lawyers and politicians in China.

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