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The rule according to a higher law is a statement which expresses that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. Thus, ''the rule according to a higher law'' may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a
government A government is the system or group of people governing an organized community, generally a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Departmen ...

government
, even though acting in conformity with clearly defined and properly enacted legal
rules Rule or ruling may refer to: Human activity * The exercise of political Politics (from , ) is the set of activities that are associated with Decision-making, making decisions in Social group, groups, or other forms of Power (social and po ...
, still produces results which many observers find unfair or unjust.


Doctrine

The idea of a law of ultimate justice over and above the momentary law of the state—a higher law—was first introduced into post-Roman Europe by the
Catholic canon law The canon law of the Catholic Church (Latin for "canon law": ''ius canonicum'') is the system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, sur ...
jurists. "Higher law" can be interpreted in this context as the
divine Divinity or the divine are things that are either related to, devoted to, or proceeding from a deity A deity or god is a supernatural The supernatural encompasses supposed phenomena that are not subject to the laws of nature.https://ww ...
or
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature Human nature is a concept that denotes the fundamental disposition A disposition is a quality of character, a habit A habit (or ...
or basic legal values, established in the
international law International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally recognized as binding between nation A nation is a community A community is a social unitThe term "level of anal ...
—the choice depending on the viewpoint; no matter the source, it is a law above the law. And it is in this capacity that it possesses the equal legal value for both the
common Common may refer to: Places * Common, a townland in County Tyrone County Tyrone (; ) is one of the thirty-two counties of Ireland Ireland (; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the North Atlantic Ocean, ...
and
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
jurisdictions, as opposed to natural law which is largely associated with common law. "To recognize the necessary connection between the rule of law as an ideal and well-constructed constitutional government does not and should not be taken to imply that all states can or should maintain the same constitutional structures in practice". ''The rule according to higher law'' is a practical approach to the implementation of the higher law theory that creates a bridge of mutual understanding (with regard to universal legal values) between the English-language doctrine of the
rule of law The rule of law is defined in the ''Oxford English Dictionary The ''Oxford English Dictionary'' (''OED'') is the principal of the , published by (OUP). It traces the historical development of the English language, providing a compreh ...

rule of law
, traditional for the countries of common law, and the originally German doctrine of ''
Rechtsstaat ''Rechtsstaat'' (lit. "state of law"; "legal state") is a doctrine Doctrine (from la, Wikt:doctrina, doctrina, meaning "teaching, instruction") is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, ta ...
'', translated into other languages of continental Europe as ''état de droit'' (French), ''estado de derecho'' (Spanish), ''stato di diritto'' (Italian), and ''Правовое государство'' (''pravovoe gosudarstvo'') (Russian). The latter doctrine is the product of continental European legal thought, which had adopted it from German legal philosophy. Its name can be translated into English as "state of law"—meaning the state in which the exercise of governmental power is kept in check by the higher law rather than by the changeable law established by this state.
Amartya Sen Amartya Kumar Sen (; born 3 November 1933) is an Indian economist and philosopher, who since 1972 has taught and worked in the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom ( ...

Amartya Sen
mentioned that the legal theorists in ancient India used the classical Sanskrit term " nyāya" in the sense of not just a matter of judging institutions and rules, but of judging the societies themselves.


Examples

Before the U.S. Civil War,
African American African Americans (also referred to as Black Americans or Afro-Americans) are an ethnic group An ethnic group or ethnicity is a grouping of people who identity (social science), identify with each other on the basis of shared attributes that ...

African American
s were legally denied equal rights and freedoms pursuant to formally valid codes prescribing the relations between master and slave. Although these codes were ''
de jure In law and government, ''de jure'' ( ; , "by law") describes practices that are legally recognized, regardless of whether the practice exists in reality. In contrast, ("in fact") describes situations that exist in reality, even if not legally ...
'' fully suitable for application in legal practice, their enforcement by the U.S. government ''
de facto ''De facto'' ( ; , "in fact") describes practices that exist in reality, even though they are not officially recognized by laws. It is commonly used to refer to what happens in practice, in contrast with ''de jure'' ("by law"), which refers to th ...
'' violated the basic human rights of a significant part of the population.
William H. Seward
William H. Seward
famously proclaimed that slavery is forbidden under "a higher law than the
Constitution A constitution is an aggregate of fundamental principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...
". Generally speaking, the occurrence of such "justly enacted unjust laws" fully depends on the stance taken by the country's political leadership towards the rule of law principle. In some countries, political leaders assert that the rule of law is purely a procedural concept. Therefore, they argue that any government may strip its subjects of their fundamental freedoms or infringe their vital interests so long as this is done by way of a duly implemented legal mechanism. For example, at the
Nuremberg trials #REDIRECT Nuremberg trials#REDIRECT Nuremberg trials#REDIRECT Nuremberg trials {{redirect category shell, {{R from other capitalisation{{R from move ... {{redirect category shell, {{R from other capitalisation{{R from move ...
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, in an attempt to justify their crimes against Jewish and Romani population of Europe during
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a global war A world war is "a war War is an intense armed conflict between states State may refer to: Arts, entertainment, and media Literatur ...
, some of the former leaders of
Nazi Germany Nazi Germany, (lit. "National Socialist State"), ' (lit. "Nazi State") for short; also ' (lit. "National Socialist Germany") officially known as the German Reich from 1933 until 1943, and the Greater German Reich from 1943 to 1945, was ...

Nazi Germany
argued that they had broken none of the laws effective when Hitler had been in power. It was only by invoking the rule according to a higher law that the Allied prosecutors were able to overcome such defenses. In other countries, conversely, political leaders assert that all written laws must be kept in line with the universal principles of morality, fairness, and justice. These leaders argue that, as a necessary
corollary In mathematics Mathematics (from Ancient Greek, Greek: ) includes the study of such topics as quantity (number theory), mathematical structure, structure (algebra), space (geometry), and calculus, change (mathematical analysis, analysis). It h ...
to the
axiom An axiom, postulate or assumption is a statement that is taken to be , to serve as a or starting point for further reasoning and arguments. The word comes from the Greek ''axíōma'' () 'that which is thought worthy or fit' or 'that which comm ...

axiom
that "no one is above the law", the rule of law requires the government to treat all persons equally under the law. However, the proclaimed right to equal treatment is susceptible to instantly becoming void each time the government denies a sufficient level of respect, dignity, and autonomy to a certain class of individuals or to human rights in general. Therefore, the unwritten and universally self-explanatory principles of equality, autonomy, dignity, and respect are said to overrule conventional written laws enacted by the government. It is these principles that are often referred to as "natural law". They also constitute the basis of the "higher law theory".


''Rechtsstaat''

The ''
Rechtsstaat ''Rechtsstaat'' (lit. "state of law"; "legal state") is a doctrine Doctrine (from la, Wikt:doctrina, doctrina, meaning "teaching, instruction") is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, ta ...
'' doctrine (legal state, state of right, constitutional state, constitutional government) was first introduced by the German philosopher
Immanuel Kant Immanuel Kant (, , ; 22 April 1724 – 12 February 1804) was a German Philosophy, philosopher and one of the central Age of Enlightenment, Enlightenment thinkers. Kant's comprehensive and systematic works in epistemology, metaphysics, ethi ...

Immanuel Kant
in his latest works completed after the U.S. and French constitutions had been adopted in the late 18th century. Kant's approach is based on the supremacy of country's written
constitution A constitution is an aggregate of fundamental principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...

constitution
created using principles of the Higher Law. This supremacy meant creating guarantees for the implementation of his central idea: a permanently peaceful life as a basic condition for the happiness and prosperity of the citizens. Kant was basing his doctrine exclusively on the idea of constitutionalism and constitutional government. The Russian legal system, born in the 19th century as a result of the transformations initiated by the reforms of the
Emperor Alexander II
Emperor Alexander II
, was (and still is) based primarily upon the German legal tradition. It was from the latter that Russia had adopted the doctrine of ''Rechtsstaat'', which literally translates as "legal state". Its closest English analogue is "the rule of law". The Russian legal state concept adopts the written constitution as the country's supreme law (the rule of constitution). It is a fundamental but undefined principle that appears in the very first dispositive provision of Russia's post-communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the very first dispositive provision of Ukraine's constitution declares that "Ukraine is a sovereign and independent, democratic, social, legal state." Hence, the effort to invest meaning to the "legal state" definition is anything but theoretical. Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003, "Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by the society."''The World Rule of Law Movement and Russian Legal Reform'', edited by Francis Neate and Holly Nielsen, Justitsinform, Moscow, 2007. The Russian concept of legal state has adopted many segments of
constitutional economics A constitution is an aggregate of fundamental principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...
which serves as a practical implementation of the higher law theory in economics.


See also

*
Constitutional economics A constitution is an aggregate of fundamental principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...
* * * *
International humanitarian law International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war ('' jus in bello''). It is a branch of international law International law, also known as public international la ...
– law of war to protect non-combatants * * * * * *
Philosophy of law Philosophy of law is a branch of philosophy Philosophy (from , ) is the study of general and fundamental questions, such as those about Metaphysics, existence, reason, Epistemology, knowledge, Ethics, values, Philosophy of mind, mind, and ...
– branch of philosophy examining the nature of law *
Law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its bounda ...
*
Natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature Human nature is a concept that denotes the fundamental disposition A disposition is a quality of character, a habit A habit (or ...
*


References


Bibliography

* ''West's Encyclopedia of American Law'' (in 13 volumes), 2nd Ed., edited by Jeffrey Lehman and Shirelle Phelps. Publisher: Thomson Gale, 2004. .
Kant’s Principles of Politics, including his essay on Perpetual Peace. A Contribution to Political Science
', translation by W. Hastie, Edinburgh: Clark, 1891. In

' *
Dicey, Albert
Dicey, Albert
.
Introduction to the Study of the Law of the Constitution"> Introduction to the Study of the Law of the Constitution
' (8th Edition, Macmillan, 1915). * Bingham, Thomas
"The Rule of Law"
Centre for Public Law,
Faculty of Law, University of Cambridge The Faculty of Law, Cambridge is the law school A law school (also known as a law centre or college of law) is an institution specializing in legal education, usually involved as part of a process for becoming a lawyer within a given jurisd ...

Faculty of Law, University of Cambridge
(2006-11-16). * Edward S. Corwin, ''The "Higher Law" Background of American Constitutional Law'' (Ithaca, N.Y.: Cornell University Press, 1955) * Buchanan, James M., 1986
"The Constitution of Economic Policy,"
Nobel Prize lecture, reprinted in ''American Economic Review'', 77(3), https://www.jstor.org/pss/1804093 p. 243–250. *Wormser, René A., ''The Story of the LAW and the Men Who Made It—From the Earliest Times to the Present: Revised and Updated Edition of "The Law"'' (New York: Simon and Schuster, 1962). * _____, 1990a. "The Domain of Constitutional Economics," ''Constitutional Political Economy'', 1(1), pp
1–18. Also as at 1990b

''The Economist">"Economics and the Rule of Law"

''The Economist
'' (2008-03-13).
Philip P. Wiener, ed., "Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas", (David Fellman, "Constitutionalism")
vol 1, p. 485 (1973–74).
Herman Belz, "A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective"
(Rowman & Littlefield Publishers, Inc. 1998),
Louis Michael Seidman, "Critical Constitutionalism Now"
75 ''Fordham Law Review'' 575, 586 (Nov. 2006).


External links

* {{law Legal doctrines and principles Philosophy of law Theories of law Sovereignty Constitutional law Law