Rule of Law- a new modern concept

Diana Elena Budusan, Cluj, 2015 October, 16

The present article is addressing all the legal players involved in the act of justice. The aim is to develop a holistic model of the knowledge and legal behavior in order to implement the elements of the law in specific areas of social, economic or political aspects of the life, with specific emphasis of the rule of law process deployed in new formal justice systems.

In this paper we will critically reflect on the assumptions and assertions of the internationally accepted standards which generate the definition of the Rule of Law. There is no widespread agreement on what exactly constitutes Rule of Law but it is a common ground regarding some of the basic features of the role and even more so regarding rule of law operations.

Rule of Law is an inherently vague term. Making matters worse, the term is used differently in different contexts so it is likely to encounter “rule of law” in a variety of circumstances.

Basically Rule of Law can be defined as a system in which the four universal principles are upheld. Rule of Law is a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights principles.1

However, an analyze of the relevant literature and contemporary reception of the rule of law concept suggests that the definit6ion of the rule of law should not be unduly crimped by governments nor emptied of any distinctive meaning by scholars and state-building experts seeking to foist a unitary, transplantable vision.

To have meaning and applicability the rule of law cannot be an abstract notion, it must be independently framed, have practical benchmarks for assessment, and be analyzed in the context of its real-world implementation.

Rule of law has been “bandied about” by politicians and theorists, as though then is a shared conception of the term.2

The rule of law is generally viewed as a “good thing”, not only from a legal or political point of view but also from an economical one, so much so that it is said to have become “the motherhood and apple pie of development economics”3.

1 U.S. DEP'T OF ARMY, FIELD MANUAL3-07, STABILITY OPERATIONS 1-9(Oct.2008)2 Erik G. Jensen, “Justice and the Rule of Law in Building States to Build Peace( Charles T.Call and Vanessa Wyeth eds, 208, Lynne Reiner, pg.122.3 “Economics and the rule of law. Order in the Jungle”, The Economist(London, 13 March2008).

Whilst definitional issues will be largely addressed, the main purpose of this paper is to offer a comprehensive overview of how the EU’s effectiveness as a rule of law “exporter”.

In order to make sense of the nature and importance of the multiple provisions conferring on the EU such a role and mission, this article will offer a brief and mostly descriptive analyze of the EU's constitutional framework, with the aim of making clear that the rule of law must be viewed as a constitutional principle of a foundational nature, which the EU has committed to promote in its relations with the wider world.

Drawing from the broadly accepted UN definition or the World Bank or World Justice Project approach on the quantifiable indicators and other bench-marks, it can be understood how to measure a country's adherence to the rule of law and devise effective rule of law programs.

The EU engages in promoting its values in a variety of ways.4 It may simultaneously rely on unilateral trade instruments, technical and financial assistance instruments, bilateral “soft” instruments, or seek to promote EU's values by developing special “partnerships” or by making them an essential element of a contractual relationship5.

However, EU instruments dedicated to the external promotion of its values rarely specify what the rule of law specifically entails and when concise definitions are offered, they are normally rather superficial and not perfectly consistent with each other as variable components of the rule of law tend to be referred to.

4 M. Cremona, “Valuesin EU Foreign Policy”, in M.Evans and P. Koutrakos(eds.), Beyond the Established Legal Orders. Policy Interconnections between the EU and the Rest of the World (Oxford:Hart 2011), at 292.5 Ibid., at 293 et seq.