The Principle of Legality: control mechanisms of democracy or strict compliance with the Act

• Introduction

• Theoretical analysis of the principle of legality

or political dimension of the principle of legality

or legal dimension of the principle of legality

or ethical dimension of the principle of legality

• Historical analysis of the interaction law - democracy

• Conclusions

• Bibliography

Introduction

From the same title that directs this research topic opens a gap in it. As is presented assumes that these two postulates are contradictory and mutually exclusive, so the task of this research would aim to demonstrate membership of one and exclusion of the other conceptual definition of the principle of legality. But after finishing it, one of the first results was the complementarity of both in their implementation.

After this first conclusion, the main problem was obvious, if possible, isolated existence of the principle of legality and democracy. The same was taken as an essential interest of the investigation.

After this, the hypothesis was that the categories of law and democracy are so interrelated that inherently depend each other for definition.

To demonstrate this hypothesis was drawn as a general objective: to analyze from a theoretical point of view - historical process of law to demonstrate their interdependence with democracy.

The law has been defined by many authors and from different positions in different ways, sometimes to be contradictory, that feed on other legal concepts and even philosophical and historical assumptions. Of them might come out as a common denominator a very strict and simple concept in which most authors agree:

"The principle of legality is the adequacy of the acts of authority to a set of legal rules, which must be expressed in the law in force?.

Amen to that most positions are consistent with this definition, for many would be very sparse and bounded, and that it does not express the kind of rules that make such order or the source of them.

One thing to note here is the explicit concept that occurs in the same element of law enforcement. The principle of legality has as one of its main elements the existence of a regulatory body, the existence of law, this results (if we start from the implicit binding feature on the right) that in a society where the principle of legality prime has must be a strict compliance with the law. The characteristic of this principle would be that strict compliance must be assumed by both the state and civil society, the latter will be protected against arbitrary power of the first.

Most lawyers insist on linking the concept of legal concepts of rule of law, rule of law and democracy, based on the idea that the law is to live within the laws "which in turn is occurring within the Constitution, by the popular will and with the full guarantee of human rights or fundamental?

However, some legal philosophers such as Hebrew Joseph Raz, argue that the concept of legality should be stripped of all democratic and ethical elements, it says nothing about the right to be created (by tyrants, democratic majorities or otherwise ) and involves fundamental rights as equality or justice. In Raz's words: "the rule of law is a negative virtue in two senses: conformity to it does not cause it, except preventing evil and evil is evil is avoided that could only have occurred by the law itself? .

As the basis of this research took sides with the majority position that some of linking the principle of legality and democracy. Given that in this work when it comes to democracy by definition is taken from a state or political regime in which sovereignty resides in the public and is therefore involved in policy making, directly or through elected representatives . Adding to this definition, given by Professor Julio Fernandez Bulte:

"The methods of exercise of state power can be adjusted to mold constitutional, respectful of the general concepts of the rule of law and, therefore, stuck to the functional principles in contemporary bourgeois political science for themselves as democratic regimes. In them (...) there is at least one formal subordination of society and the state and its organs to the rule of law and has functioned according to standards of general respect for individual liberties and civil rights.?

Development

1. Theoretical analysis of the principle of legality

When we talk about rule of law, one element that stands out is its multi-dimensional view. The same, if you define a broad perspective, takes on three main dimensions: a political dimension, a legal dimension and an ethical dimension.

In its political dimension regulates the legal relationships established between rulers and ruled. In this dimension takes a very close relationship with the concept of legitimacy and democracy.

In its legal dimension, as it should be comprised of regulated and established the legal and fixed while the quality requirements standards.

Finally, in its ethical dimension, it inserts the values ​​of justice and equality in the two previous dimensions.

1.1. Political dimension of the principle of legality

From the perspective of political science, the principle of legality, the organization of social life within the state, is a requirement and the power attribute limits the exercise of it. A power of attorney is lawful and legal acts to the extent which is in accordance with a certain set of rules and is exercised in attachment to another catalog of previously established rules.

Under the political perspective the concept of law is closely related to legitimacy: the first relates to the exercise of power and the second to the ownership of it. A power is legitimate in the strict sense, when the ownership of that power has a legal basis, and is legal when the acts of authority emanating from the same conform to the laws. The concept of legitimacy is to answer the question: what is the basis of political power determined?, While the concept of legality answers the question: How do you wield this power? In this situation we have, in principle, two levels of relationship between law and political power: a) a first level refers to the legal basis of ownership of power (legitimacy) and b) a second level that serves the exercise power from the perspective of their attachment to a set of rules (if you do you a power of attorney, if not an arbitrary power).

Since ancient times, Plato raised the contrast between "the government of men? and the "government of laws?, as the first explanation that the governed are subject to the arbitrariness of the ruler and the ruled in the latter have a greater chance to know in advance the limits and scope of the exercise of authority. Speaking in modern terms and where the rule of law is established, the governed have a certain degree of legal certainty and security and enjoy, in principle, a state of equality before the law.

However, it is noteworthy that the existence of a particular body of law governing the conditions of exercise of political power does not guarantee, by itself, the validity of a catalog of legal guarantees for the company who exercises authority.

That is why the principle of legality requires other elements to adjust its content in a broader sense, be understood as a legal ideal that does not refer to the right "is? but the right "should be?.

Thus was born the concept of rule of law, which the legality and the rule of law are essential tools for implementation. In the rule of law, the concept of legality acquires a broader dimension to the extent that tends to guarantee certain principles within the social context in which it takes effect. In a modern constitutional state, not just the existence of legal standards and adherence to them by who holds the political power it is necessary to effectively ensure the rule of law, that these rules have a number of features in its origin and structure (static aspect of the law) and could be applied in accordance with certain criteria (dynamic aspect of law). In the words of Elias Diaz

"Not every state is a rule of law. Of course all state produces, creates, one law, that is, produce legal norms, and to a greater or lesser extent, uses, applications and uses them to organize and run social group, as well as resolving specific conflicts arising within it. Hardly be imagined today (and perhaps all time) a state without law, without laws, without judges, without something like a legal system, although margins have always been arbitrary or other carrier and in any case, negative presence. But, nevertheless, that constant, not a State deserves to be recognized with this, no doubt, a prestigious label is qualified and legitimized - as well as descriptive - the rule of law, a State law (all or almost all) not, without more, a rule of law (a few).?

The most important element in the political dimension of the principle of legality is undoubtedly referred to the inclusion of the "democratic principle?, Resulting in a larger" democratic rule of law?. From this perspective, the law must be the expression of sovereignty of citizens to which it applies. Elias Diaz, as well as incorporating the principle of democracy, argues the need to consider within the concept of democratic rule of law notion of fundamental rights:

"The rule of law (...) is one in which the normative regulations are made from free participation (expressed in the democratic election of members of the legislature), incorporating the fundamental rights and better (...) rigorously forcing ( by controlling the administration) to public authorities to move always in the utmost respect and submission to the laws (Constitution and other) prohibiting and prosecuting any action or state response using any force or coercion that may be illegal ? .

The principles and institutions of democracy are, on the principle of legality, a precise legislative expression. Legislative regulation of these institutions puts democracy within certain limits and gives a social orientation. Without the law, democracy can not fulfill its social function, which is to ensure the interests of the majority

The rule of law not only prevents authoritarianism and dictatorial rule but also curbs the totalitarian concept of democracy, the overwhelming majority and without limits. The principle of legality set to democracy, not a simple mechanical rule, blind material values, and strictly neutral with them but the accused providing her with a margin of performance and material values ​​and general principles of law themselves. In the rule of law, the principle of legality is the control mechanism of democracy.

1.2. Legal dimension of the principle of legality

The concept of legality in its legal dimension adopts a series of strictly technical parameters established. The three most important are, without doubt, the existence of a regulatory body issued by a legally recognized, that the regulatory body should be composed of stable rules, retroactivity, generally clear and well-published and, to be executed by an institution impartial (previously established courts) by standard procedures accessible to all to ensure that any punishment is duly founded and motivated in law.

For the existence of the principle of legality is necessary to have a stable regulatory body. The existence of certain rules is the first step to ensure the principle of legal certainty. A clearly delineated regulatory body allows subjects who are under the rule of that set of rules, known prior to the completion of his actions legal consequences arising therefrom. The Constitution takes a key role in this aspect, that of Professor Cañizares, "the characteristic phenomenon of the modern state is constitutionalism expression and guarantee the rule of law? .

However, as already noted, the regulatory body must also meet certain characteristics to meet the ethical ideal of "rule of law?. In the first instance the legal standards must be legitimate, that is to be issued by authorized state bodies and relevant within their proper spheres of authority, no defects in the formality of approval and promulgation. Moreover, these new rules should be consistent with the rest of the legal system to avoid the contradictions and gaps in the law, while its content must be consistent with higher-level standards in the legal system itself so that it can preserve its internal unity and external.

Legal rules should be general. Your content should be directed to the whole society, not for certain people in particular, ie, has a sense of general application and not particular. With this feature of the law is in response to the principle of "equality before the law?, As any individual, regardless of their individual characteristics, has the same relationship to the law that the other members of society.

The rules must be non-retroactive and almost never retroactive, except when favorable to sanctions. Their existence must precede the act that apply to ensure the principles of "certainty and legal security?. They must also possess a degree of stability over time: its validity must be of reasonable length for individuals subject to the same can foresee the consequences of their actions.

The next requirement to ensure the "rule of law? related to the dynamic aspect of the law: the concrete implementation of laws to particular cases. To A.V. Dicey, the leading theoretician of the "rule of law?, The first meaning of this concept lies precisely in" no man should be legally punished or may occur in your body or property except for a specific violation of the law, established legal as ordinary in the ordinary courts of the country? . This basic position is clearly stated in a general principle of criminal law: crime nullum, nulla poena, sine lege (no crime, no punishment without law prior to the event). This third level of guarantees for the duration of the "rule of law? is undoubtedly the heart of every modern rule of law in the same daily relationship materializes and effective regulatory body with the subjects under their rule.

1.3. The ethical dimension of the principle of legality

The principle of legality is seeking support evaluative notions guarantee certain principles such as equality, utility, and, above all, justice. This, ultimately, it seeks to protect the idea of ​​"autonomy? people. In all cases it is an ethical conception of law that goes beyond the purely descriptive level, in which only matter to establish the existence or absence of a regulatory body governing the relations between rulers and ruled, and begin to speak of the values which rests the body.

Kant, the man had applied to ethics, this trend, the social context that best allows the development of man is he who is governed by a well-established body of law, which allows certain plan and execute their own life plan. A notion of this kind is that which corresponds to the legal manifestation of the categorical imperative conceived by Kant: a law that allows maximum freedom of each consistent with the freedom of others.

2. Historical analysis of the interrelationship law - democracy

The most widely postulated in contemporary legal science is to consider the principle of legality product of the bourgeois revolutions, therefore we can only speak of legality in the context of modernity.

Some Soviet authors as Strogovich, Bratus, Kechekian, Ioffe and Sahrgorodski, posed a different concept considering that the law existed in any class society, but to support this position took a conception of law divorced from democratic ideas confused with simple legislation. In the words of Ioffe and Shargorodski: "In every class society are the law and violations of the law? .

Given the position taken in this work of an interrelationship between democracy and legality, and following the thread of this section, it is logical to reject the second conception, and refuting the arguments stated above. However, the first also satisfies the need to demonstrate the interrelationship between democracy and legality, due to the existence of democratic regimes before the Enlightenment.

While the principle of legality as theoretical postulate of political science and legal struggle emerges in the eighteenth century revolutionary bourgeoisie against the monarchy, texts of Aristotle, Herodotus, Thucydides Protagoras and show the existence of the "rule of law? from the Athenian polis.

It is impossible to imagine a democracy without rule of law, so it is very likely that democratic regimes have held since antiquity that category relations within government - society.

A clear explanation of the existence of this category in the Greek model bequeathed to us Thucydides Pericles' Funeral Oration:

"We have a political system that does not envy the laws of the neighbors and we are rather than imitators model for some of the others. Get the name of democracy, because it is governed by the majority and not a few, according to law, all have equal rights in private litigation and, for the honors (...) And just as we do not bother coexistence Private, not transgress the laws in public affairs, especially fear, with respect to public office on each occasion and the laws and, among these, particularly, which are set to benefit the victims of injustice and which, although unwritten, lead by commonly accepted shameful punishment.?

The Greek state law was the law of the citizen, all were equal before the law, which governed the relations between individuals. The law is opposed to tyranny and freedom, therefore, implies respect for the law. If the law is properly formulated in the framework of the common life legitimately impose obedience. In this sense, the notion of "rule of law? through the process and constitutional government, finds its first expression in the policy of the city-state.

Another test of this idea is the Greek ideal of isonomy, a state of equality before the law, much praised by Herodotus in his Nine Books of History. Solon, archon in 594 BC, put an end to the oppression of sisactia creditors over debtors, according to Engels, the legislature began the era of political revolutions: the first time that the property suffers for the powerful of the oppressed.

Aristotle, who defends the property, is inclined to believe in the power base of all social organization. The Stagirite, describing constitutions of 158 Greek polis in his Politics, argues that good governance forms should prevent the selfish use of power: the government must serve the whole society:

"They say, no doubt, that the issues that the law seems unable to decide not know a man could. But the education law expressly provides that these rulers and judge and administered with a criterion that falls just out of reach?.

The Graph to Nomon, is a proof of principle of legality as a control mechanism of democracy in the Greek polis was a Athenian law of the classical Greek era, whose aim was the protection of democracy, making each responsible citizen of the laws that appear before the ekklesia. Was that, if a citizen proposed a new law to the ekklesia and it's approved, if the law harmed the interests of the polis or went to their advantage, giving every citizen the right to denounce the law and freeze until the ekklesia opinion as to whether it was true or not the prosecution. If so, who had presented the law should be responsible for the damage caused by it, just as the accuser should respond if the claim was rejected.

Finley added that in Greece, "freedom meant the supremacy of law and participation in decision-making process and not necessarily the enjoyment of inalienable rights." The law was identified with the spirit of the city. "Obey the law meant to follow the will of the community," notes Paul Veyne. As Cicero wrote, freedom can only open the way to the law, "Legum ... ut liberi Sumu services possimus esse" ("We are servants of the law in order to be free,"

In the Roman Republic, the law had to be and could only be the result of the direct and absolute will of the people. It derived its power law and thus secured his potestas people.

In this fragment of the Digest, attributed to Julian, reinforces this view:

? Not without reason that keeps long-standing custom into law and this is the right that says made by the customs (mores). For as the same laws for no other reason compel us, but because they were received by the opinion of the people and also because it saves all approved written without the people, because what matters even the people declare their willingness to vote, or the same things and deeds? Wherefore also it is correctly received repeal laws not only suffrage, but also by the tacit consent of all through disuse.?

As a matter of Professor Julio Fernandez Estrada, in the Republic when the citizen was subject, that is, when his government was due to not alienate their sovereign status, but the place at a higher plane and concrete. In obeying the government was, in fact, complying with those chosen by him and obeying him in what he had prepared as a sovereign.

The analysis of slave societies with democratic rule demonstrates that the principle of legality does not belong to the bourgeois revolutions, or liberalism. At the same time maintains the argument of interdependence of the categories legality and democracy, both intrinsically depend for their survival: democracy without law would be anarchy, the law would not exist without democracy.

Conclusions

The concept of legality expressed from its more restricted meaning is, in itself, the adequacy of the acts of authority to a body of law from any source and content, and thus requires strict compliance with the law. However, in its most general, the concept of legality is translated into broader concepts such as "rule of law? or "rule of law?, whose effect is, not enough to have a regulatory body, but this meets essential features, should be the manifestation of the popular will (democratic principle), and explicitly provide protection mechanisms certain fundamental rights.

Speaking of legality and democracy for the modern state must be tautological, since both categories are themselves an essential characteristic of one another.

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