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2.2.2 Rule of Law
Rule of law
means having respect for the constitution and human rights, the creation or reinforcement
of independent parliaments and an independent judiciary (division of power). Rule of law
is exemplified by courts being bound to the law. It also includes the independent judicial
review of controversial governmental measures. Thus, criteria for decision making and
processes for awarding land, land valuation, expropriation
for public interest, and taxing of land become
transparent and controllable. Rule of law is, therefore, able to limit the arbitrariness
of governmental and private activities. It makes the activities predictable and secures
the institutional enforcement of legal claims. Legal security for which rule of law is a
prerequisite promotes the development of the economic and social potential of the people
and their private decisions. |
Rule of law limits governmental arbitrariness |
| The elements of the rule of law: The rule of law encompasses the following
elements:
a guarantee of basic rights
the separation of powers
the legality of administration
the constitutionality of laws
the independence of judges
prohibition of the retroactive effect of
criminal laws
judicial remedies and judicial review
certainty as to law and justice
Source: School of Administration (1997) |
The different
historical experiences that the European countries have had with reform and transformation
show two things. The public discussion on bills (in Germany at the time of creation of the
BGB, the German Civil Code) is critical for the new land tenure systems to be accepted. Legitimacy can only be attained if the
new law is more differentiated than the old, and if it is understood by those affected by
it. It can only be preserved if tasks traditionally bound to land tenure are taken over by
other institutions and if legal security is guaranteed by public proceedings and quick,
low-cost arbitration or enforcement of the law.
Rule of law always enables and requires
an increase in participation of the involved and affected groups. |
Public
awareness and acceptance |
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