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Principle of Legality Wiki

Posted 27. November 2022 by Logistik-Express in Allgemein

In most fields of study, particularly in academia, the elevation of a principle in that field to the status of law usually takes place after a very long period of time during which the principle is applied, tested and verified; Although in some fields of study, these laws are simply postulated and adopted as a basis. Mathematical laws fall somewhere in between: they are often arbitrary and inherently unproven, but they are sometimes judged based on their usefulness in making predictions about the real world. Ultimately, however, they rely on arbitrary axioms. The Statute of the Council of Europe makes the rule of law one of the fundamental principles on which the establishment of the organisation is based. Paragraph 3 of the preamble to the Statute of the Council of Europe states: “Reaffirming their attachment to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political freedom and the rule of law, principles which constitute the foundation of any genuine democracy”. The Statute establishes respect for the principles of the rule of law as a precondition for full membership of European states. [68] In a document on the normative phenomena of morality, ethics and legality, legality, having regard to the role of the state, is defined as follows: The system of laws and regulations for good and bad behavior that is enforceable by the state (federal, state or local government agency in the United States) through the exercise of its police powers and judicial procedures. with the threat and application of sanctions, including its monopoly on the right to use physical force. [6] The use of the term dates back to the 16th century in Britain. In the following century, the Scottish theologian Samuel Rutherford opposed the divine right of kings.

[6] John Locke wrote that liberty in society means being subject only to laws enacted by a legislature that apply to all, with a person otherwise free from governmental and private restrictions on liberty. “The rule of law” was popularized in the 19th century by the British jurist A. V. Dicey. However, the principle, if not the phrase itself, was recognized by ancient thinkers. Aristotle wrote: “It is more appropriate for the law to govern than any other citizen.” [7] There is some debate as to whether this is really a genuine exception. Some will say that this is an exception or, perhaps more seriously, a violation of the principle of legality. While others would argue that crimes such as genocide violate natural law and, as such, are always illegal and always have been. Therefore, it is always legitimate to punish them. The exception and justification of natural law can be seen as an attempt to justify the Nuremberg trials and the Adolf Eichmann trial, both of which have been criticized for retroactive criminal sanctions. Fairness is a set of rules developed in England separately from the common law.

The common law was administered by judges and lawyers. The Lord Chancellor, on the other hand, as guardian of the King`s conscience, could suspend the judicial law if he deemed it just. [220] This meant that justice functioned more by principles than by rigid rules. Although neither common law nor civil law allows people to separate property from control of property, justice makes this possible through an agreement known as a trust. Trustees control property, while beneficial or equitable ownership of trust property is held by people called beneficiaries. Trustees have a duty to take care of the property entrusted to them. [221] In Keech v. Sandford [1722],[222] a child had inherited the lease in a market in Romford, London. Mr. Sandford was instructed to care for these assets until the child was an adult. But before that, the lease expired.

The landlord had (apparently) told Mr. Sandford that he did not want the child to get the renewed lease. Yet the landlord was (apparently) happy to give Mr. Sandford the option of a lease instead. Mr Sandford accepted that. When the child (now Mr. Keech) grew up, he sued Mr. Sandford for the profit he had made from the lease of the market. Mr Sandford has to be trusted, but he has put himself in a conflict of interest. The Lord Chancellor, Lord King, agreed and ordered Mr. Sandford to collect his profits.

He wrote: “I can see very well that if a trustee could have a lease on himself when he refuses to renew, few trusts would be renewed. […] It may seem very difficult that the trustee is the only person of all humanity who may not have the lease; But it is very true that the rule is strictly enforced and is not relaxed at all. » an independent and impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to the sanction; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; the equality of all before the law; These are all fundamental principles of the rule of law. As a result, arbitrary arrests; secret processes; indefinite detention without trial; cruel or degrading treatment or punishment; Intimidation or corruption in the electoral process is unacceptable. The rule of law is the foundation of a civilized society. It creates a transparent, accessible and equal process for all. It ensures respect for principles that liberate and protect. The IBA calls on all countries to respect these fundamental principles. It also calls on its members to uphold the rule of law in their respective communities.

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