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Thoughts on state power limitation

Friday, 24th December 2010

Rechtsstaat: a “constitutional state” in which the exercise of governmental power is constrained by the law, and is often tied to the Anglo-American concept of the rule of law.

In a Rechtsstaat, the power of the state is limited in order to protect citizens from the arbitrary exercise of authority. In a Rechtsstaat the citizens share legally based civil liberties and they can use the courts. A country cannot be a liberal democracy without first being a Rechtsstaat.

There organization of laws follow a cyclic nature.

The organic development of laws

Constitutionalism: holds that government can and should be legally limited in its powers, and that its authority depends on enforcing those limitations. Sometimes equated with the “rule of law.”

FACT: The Philippines does not have a traditional or even favourable sentiment towards the traditional concept of constitutionalism.

Our first constitution in 1899, which I believe the best and most representing of our national aspirations was struck down along with the Malolos Republic; the next two (1935, 1942) were imposed upon us by foreign powers seeking extraterritorial hegemony; our next home-grown charter (1973) was co-opted to justify the actions of a single tyrant, and our current one (1986) was written primarily to do away with the last one.

With so many replacements of our fundamental charter, the Filipino citizenry have picked up the wrong idea about the “rule of law,” seeing from their experience that, law is an arbitrary thing, imposed upon the country by the self-serving political class and designed to serve the agenda of the hour and curry the favours of the mob.

We are then currently left with a document steeped in the intrinsic errors of 19th century Jacobin socialism and Progressive Era (c. 1890-1920) populism, while faith and custom, the true originators of law are ignored, primarily because the roots of many of these traditions extend beyond the national boundaries; a mortal sin to the nationalists.

The rule according to a higher law: means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice.

Thus, the rule according to a higher law may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a government, even though acting in conformity with clearly defined and properly enacted legal rules, still produces results which many observers find unfair or unjust.

“Higher law” can be interpreted in this context as the divine or natural law or basic legal values, established in the international law, – the choice depending on the viewpoint. But this is definitely a Law above the law. And it is in this capacity that it possesses the equal legal value for both the common and civil law jurisdictions, as opposed to natural law which is largely associated with common law.

“To recognize the necessary connection between the rule of law as an ideal and well-constructed constitutional government does not and should not be taken to imply that all states can or should maintain the same constitutional structures in practice”.

Sellers, M. & Tomaszewski, T. (2010) The Rule of Law in Comparative Perspectives. New York: Springer Publishing. ISBN: 978-9048137480.

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