REGIONAL COOPERATION AND ECONOMIC INTEGRATION

PART IV:
determined by legal rules and not the arbitrary behaviour of authorities; there can be no
punishment unless a court decides there has been a breach of law; everyone, regardless of
their position in society, is subject to the law.
The rule of law does not have a precise definition, and its meaning can vary between
different nations and legal traditions. Although no precise definition, the purpose of the rule
of law is the protection individual rights and freedoms of abuse freedom of state power. It
can be understood as a legal-political regime under which the law restrains the government
by promoting certain liberties and creating order and predictability regarding how a country
functions. In the most basic sense, the rule of law is a system that attempts to protect the
rights of citizens from arbitrary and abusive use of government power.
Since it protects individual rights, the rule of law requires an independent judiciary. For
the rule of law is not only sufficient technical division of powers between the legislature,
executive and judiciary, as it exists in almost all modern states. What characterized the
rule of law in the organization of government is an independent judiciary. As a significant
institutional bond rule of law, independence of the judiciary provide effective judicial
and administrative protection and realization of freedom and rights of citizens, because
“there is no liberty if the judicial power is not separate from the legislative and executive
authorities” (Monteskje, 1989, pp. 176).
Important characteristic of the rule of law is the legitimacy of the creation of law and
legitimacy in the implementation of law which is primarily reflected in the impartial
judiciary. Judges, the voice of the law, should be categorical about the realization of basic
human rights and freedoms. “No judges, no rights, no rights, life has no value. Judge is the
living law. The law in his personality and life gets” (Marković, 1977, pp. 19).
Therefore, the main elements of the rule of law are: the separation of powers, independent
judiciary, protection of individual freedoms and rights and limit state power.
1. The modern concept of the rule of law
Different people have different interpretations of the meaning of ‘the rule of law’.
Among modern legal theorists, three major views are known as the formal approach, the
substantive approach, and the functional approach. The formal interpretation holds that the
law must be prospective, well-known, and have characteristics of generality, equality, and
certainty. Other than that, the formal view contains no requirements as to the content of
the law. This formal approach allows laws that protect democracy and individual rights,
but recognizes the existence of rule of law in countries that do not necessarily have such
laws protecting democracy or individual rights. The substantive interpretation holds that
the rule of law intrinsically protects some or all individual rights. In addition to the formal
and substantive interpretations of the term rule of law, another leading interpretation is
the functional definition which is consistent with the traditional English meaning that
contrasts the “rule of law” with the “rule of man.” According to the functional view, a
society in which government officials have a great deal of discretion has a low degree of
“rule of law”, whereas a society in which government officers have little discretion has
a high degree of “rule of law”. The rule of law is thus somewhat at odds with flexibility,
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