Montesquieu`s work based on the rule of law is best known for its insistence on the separation of powers – in particular the separation of the judiciary from the executive and legislative powers (cf. Montesquieu 1748: Bk. 11, chap. 6). The judiciary must be able to do its job as a spokesperson for the law without being distracted by new decisions made by legislators and policymakers during its deliberations. Montesquieu`s views on the separation of powers had a profound influence on the American foundation, particularly in the work of James Madison (Federalist Papers, § 47). Sometimes situations can be resolved and disputes resolved through informal social norms rather than through officially promulgated and enforced positive law (Ellickson 1994). Opinions differ as to whether this should be seen as something quite different from the rule of law. On the one hand, it looks like a real alternative, and there is little to be gained by adapting its desirable characteristics, such as they are, to the requirements of the rule of law. On the other hand, it has something in common with customary conceptions of law and ideas of the rule of law (such as Hayek`s in 1973), which attempt to separate themselves from enactment and legislation. It is also sometimes said that the rule of law works best when what is applied in a society can be mapped to the standards of fairness and common sense of its members. This makes society`s participation in the integrity and preservation of the law more likely (Cooter, 1997).
The closer this mapping gets, the less investment is needed in formal promulgation: ordinary know-how can become a reliable guide to legal knowledge. However, you have to be very careful with this. Modern law is inevitably technical in a way that far exceeds the possibilities of intuitive understanding (Weber 1968 [1922]: 882-95). The best one can hope for is some sort of occasional consonance between enacted law and informal agreements, and the sporadic nature of this may increase rather than reduce unpredictability. Making laws that man cannot and will not obey serves to despise all law. In a republic, it is very important that the people respect the laws, because if we throw them to the wind, what will happen to a civilian government? This law comes from the judiciary. Although the courts do not pass laws, they interpret them. This means that the judiciary bases its legal decisions on what is in the constitution and on previous court decisions in similar cases.
This is a process called stare decisis, which means “to leave the decision standing” in Latin. Essentially, the act is intended to mitigate conflict. When creating laws, societies consider what fuels conflict. Some things – such as murder and robbery – are obvious and have been incorporated into laws dating back to ancient times. However, with time and changes in societies, what is considered acceptable also changes. Legal systems adapt to provide clarity and context for unacceptable actions. They also provide guidelines for appropriate consequences. Both Chaskalson and Bingham seem to want to complement the formal/procedural concept of the rule of law with a human rights component. And many liberals tend to follow them in this area. But that`s not the only option. Many associate the rule of law with the presumption of liberty or the principle of human dignity. Others, as Arthur Chaskalson suggested, combine the rule of law with a substantial dimension of democracy.
In this context, the need for clarity is also important. Laws must be public not only in terms of effective enactment, but also in terms of accessibility. It is true that much modern law is necessarily technical (Weber 1968 [1922]:882-95), and the layman will often need professional advice on what the law requires of him. It is also important for the rule of law that there is a competent profession available to provide such advice, and that the law must be such that it is at least possible for professionals to obtain a reliable picture of what the law requires at any given time. In the nineteenth century, Jeremy Bentham (1782: chap. 15 and 1792) criticized customary law in general, and common law in particular, for failing to meet this requirement: the sources of law were hidden in obscurity, and although there were flimsy appeals to precedents, much of the law was invented only by judges. In modern debate we also hear echoes of the doctrine of The Spirit of Laws (1748: Bk. 26, chap. 15, p.510) that “things which depend on the principles of citizenship are not to be governed by principles of political law.” “Civil law” – Montesquieu`s word for what we call private law – is, as he said, “the palladium of property,” and it should be allowed to operate according to its own logic, not weighed down by the principles of public or political regulation. A failure of the rule of law in this respect is likely to lead to the impoverishment of an economy as expectations collapse and owners` incentives for production and enterprise are undermined (Montesquieu 1748: Bk. V, chap. 14, p.
61). In this context, the rule of law is valuable and important because it creates an environment conducive to freedom. According to Hayek`s theory of the rule of law – especially in the early stages of his work (see section 3.5 above) – we value requirements such as generality and impersonality because they free us from dependence on the will of others: alongside these debates about the value of the rule of law, there is an incessant controversy in the camp of those who defend legality over what the rule of law requires.