Bufford Defining the Rule of Law

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The rule of law is promoted by a generally stable system of law. 68 It is especially important that laws have no retroactive deleterious effect. 69 This means that conduct that was legal at the time it was undertaken, even if later prohibited by the legislature, must be protected. C. Judicial System An effective and independent judicial system is necessary to resolve business and other disputes (including disputes over governmental regulation) that arise. Such a system must provide independent judicial decisions, reasonable access to justice, and must not impose unreasonable costs on the participants. No person or institution should be “above the law” and exempted from its requirements. 1. Judicial Independence Judicial independence is an essential cornerstone of the rule of law and for the proper functioning of a market economy. A judicial system must promptly resolve disputes on their merits by an impartial judiciary, 70 as unreasonable delays seriously undermine the rule of law. The rule of law also requires at least some level of appellate review of judicial decisions to ensure proper interpretation and application of the laws. 71 Judicial independence requires that judicial participation in politics be substantially circumscribed. While the law may permit a judge to be a member of a 68 See Paul Gewirtz, Independence and Accountability of Courts, 24 GLOBAL L. REV. 7 (2002) (published in Chinese but available in an English translation at http://www.law.yale.edu/documents/pdf/Ind_and_Acct_(English).pdf) (pointing out the value of a precedent system in giving a legal system predictability and reliability). 69 See Fundamental Freedoms, supra note 12, art. 7; see also Rome Statute, supra note 66, art. 24(1); cf. id. art. 24(2) (applying more favorable law to person being investigated, prosecuted or convicted if there is a change in law prior to final judgment). 70 See Fundamental Freedoms, supra note 12, art. 6; see also American Convention, supra note 15, art. 8. 71 Cf. Statute of the Court of Justice of the European Union art. 4, January 2007, http://curia.europa.eu/en/instit/txtdocfr/txtsenvigueur/statut.pdf [hereinafter Court of Justice Statute] (allowing appeals from decisions of the Court of First Instance). 16
political party, the law should prohibit a judge from running for political office. Similarly, judges should not engage in political fundraising or other clearly partisan activities. Further, judicial independence requires that both an individual judge and the system of justice be shielded from legislative reprisal for a judicial decision. In addition, legislatures must be prohibited from reducing a judge’s salary or benefits, or even reducting the funding of the judiciary generally, because of displeasure with particular judicial decisions. Reasonable access to courts requires that judicial business be conducted in public. 72 This requirement has two dimensions. First, both written judicial decisions and papers filed with courts must be available to the public when a reasonable request is made. 73 Second, courts must be open to the public so that citizens can see justice in action and be satisfied that court procedures are fair and equitable. The rule of law also requires that judges be competent. 74 This means that judges must meet minimum requirements in education, experience, moral standards, and judicial temperament. It also requires judges to continually keep abreast of new developments in the law, legal systems, and judicial procedures. Because laws and legal procedures change frequently, ongoing judicial education is therefore critical to ensuring that judges will be able to perform their judicial duties effectively. 72 Thomas M. Riordan, Copping an Attitude: Rule of Law Lessons from the Rodney King Incident, 27 LOY. L.A. L. REV. 675, 736 (1994) (citing GEOFFREY DE Q. WALKER, THE RULE OF LAW: FOUNDATION OF CONSTITUTIONAL DEMOCRACY 40 (1988)). 73 It is appropriate to adopt measures to protect trade secrets and other confidential information. 74 See Fundamental Freedoms, supra note 12, art. 21(1); see ECHR Rules, supra note 100, Rule 3(1)(There is no note 100; not certain what this citation is referring to); see also Rome Statute, supra note 66, art. 3; see also Statute of the International Court of Justice art. 2, June 26, 1945, 17 U.N.T.S. 111 [hereinafter ICJ Statute]. 17
Page 1 and 2: I. Introduction Defining the Rule o
Page 3 and 4: Kennedy stated, in his 2006 address
Page 5 and 6: 1948. 7 In this Declaration, the Un
Page 7 and 8: The rule of law also provides that
Page 9 and 10: aspirational, rather than mandatory
Page 11 and 12: To protect the substantive requirem
Page 13 and 14: Torturing a person in custody, whet
Page 15: enforcing legitimate expectations.
Page 19 and 20: countries. Where a judicial decisio

Bufford Defining the Rule of Law

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