Some cases are so difficult that they cannot be handled in accordance with the general rules – cases that require the insight of some judges; he used the term epieikeia (sometimes brought to justice). However, these cases should be kept to a minimum, and legal education and legal institutions should continue to play a role in how they are resolved. Aristotle`s discussion of the general expediency of rules and his treatment of the epieice continue to influence modern jurisprudence (see Scalia 1989 and Solum 1994). The difficult question is whether federal jurisdiction extends to the formulation of binding precedents through strict adherence to the stare decisis rule. In the present case, the decision on a case becomes a limited form of legislation in itself, since the decisions of a court of appeal thus bind itself and the lower courts in future cases (and thus implicitly bind all persons within the jurisdiction of the court). Prior to a major change in Federal Court rules in 2007, about one-fifth of federal appeal cases were published, becoming binding precedents, while the rest were unpublished and were only committed to the parties in each case. [43] In addition to the form of the rules themselves, there is also the nature of their presence in society. The rule of law provides that the law functions as a relatively stable set of standards available as public knowledge. It requires that laws be public and enacted long before individuals are held accountable for their compliance. These are characteristics that stem in part from the fact that laws are supposed to guide behavior, which they cannot do if they are secret or retroactive. But it is not only a question of pragmatism of governance. Laws go in two directions: (i) they impose requirements on ordinary citizens that they must meet; and (ii) instructing officials on what to do in the event of non-compliance by citizens.

Laws that are secret and retroactive to the extent that (i) is concerned may continue to be in force with respect to (ii). The constitutional requirements on publicity and foresight therefore have an additional meaning: they require citizens to be informed of what is required of them and on what basis they can be held accountable. To what extent should the rule of law have the task of eliminating or reducing the margin of appreciation in the way a society is governed? Some jurists, such as Dicey (1885) and, to a lesser extent, Hayek (1944), insist that formal discretion is intrinsically opposed to the rule of law. Others, such as Davis (1969), condemn this position as extravagant, arguing that discretion is indelible in the modern administrative state. The rule of law is not intended to eliminate discretion, but to ensure that it is properly formulated and approved, and that the application of judicial rules and procedures is preserved in cases where freedom and well-being are most at stake. The rule of law is considered one of the key dimensions that determine the quality and good governance of a country. [42] Research, such as the Global Governance Indicators, defines the rule of law as “the extent to which officers trust and respect the rules of society, in particular the quality of contract, police and court enforcement, and the likelihood of crime or violence.” [42] Based on this definition, the Global Governance Indicators project has developed aggregated measures of the rule of law in more than 200 countries, as shown in the map on the right. [43] (1) The first element is the ability of legal norms, norms or principles to guide people in the conduct of their business.

People must be able to understand and comply with the law. (2) The second element of the rule of law is effectiveness. The law should actually guide people, at least for the most part. In Joseph Raz`s sentence, “People should be governed by and obey the law. (3) The third element is stability. The law should be reasonably stable to facilitate coordinated planning and action over time. (4) The fourth element of the rule of law is the primacy of legal power. The law should govern both civil servants, including judges, and ordinary citizens. No report on the rule of law is complete if it does not mention how this ideal is outdated. The glowing history of the rule of law in the work of thinkers such as Aristotle, Locke, Dicey, Hayek and Fuller has been described by opponents of legality such as Plato (in The Statesman), Thomas Hobbes (at least if the rule of law is to take us beyond the rule of law) and Carl Schmitt in 1923 (in his attack on parliamentarism and liberal adoption, that rules may prevail even in conditions of endemic crisis).

These rules would serve impersonally to protect people from each other, since they would not target a particular person or situation and would not depend on an expectation on the part of the government for their operation, which would be the particular impact of their application. But this lack of specific knowledge on the part of the government would be compensated by the fact that the rules would provide a framework of predictability for ordinary people and businesses. They would know that they would not be harassed by the state, provided that they acted within the parameters of the general and impersonal rules. Human freedom, according to Hayek`s calculations, did not exclude any action by the state; but this requires that the action of the State be calculable. The “rule of law” means first and foremost “the protection of property rights”. [90] Economist F. A. Hayek analyzed how the rule of law could be beneficial to the free market. Hayek suggested that individuals under the rule of law would be able to make smart investments and future plans with some confidence in a successful return on investment, when he said: “Under the rule of law, the government is prevented from paralyzing individual efforts through ad hoc measures. Under the known rules of the game, individuals are free to pursue their personal goals and desires, knowing that government powers are not intentionally being used to thwart their efforts.

[91] Does it make sense to use the rule of law to assess how a society responds to emergencies? It is often assumed that emergency situations require more restrictive and procedural forms of State action than in normal times. In fact, a number of possibilities have been discussed (Scheuerman 2006). The first is to insist, in the name of the rule of law, that existing constitutional guarantees remain in force; after all, they were developed for this, and in these situations they are the most urgent. Alternatively, in emergency situations, one could count on a general spirit of flexibility and derision in the action of the State, which is also promoted in normal times. In this second option, the rule of law does not present itself as a substantial limitation of the flexibility of the State`s action in the face of danger. As a third option, one could try to preserve something like the rule of law by establishing in advance specific legislation for emergency situations — rules that, for example, suspend ordinary guarantees of civil liberties or leave a wide margin of appreciation on the part of officials to take measures that would normally be subject to general legal standards. (Machiavelli proposed a version of this in his Discourses (1517) and praised the institution of the dictator in the Roman Republic.) This option has the advantage of predictability; but its downside is that it supports a kind of light rule of law that can eventually infect or replace the concept of the rule of law that is supposed to be normally applicable. .