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Rule of Law (Models of Rule of Law (Restricted: The State is restricted by…
Rule of Law
Models of Rule of Law
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Strict: The State is restricted by the emission of general laws that aim at protecting the individual's autonomy
Democratic: The State is restricted by the emission of general laws created through the participation of citizens
Liberal: The State is restricted by the emission of general laws that protect the individual's rights
Guarantist wide: The State is restricted by the emission of general laws that protect individual and social rights
Demanding comprehensive The State is restricted by the emission of general laws created through the participation of citizens and that aim at protecting individual and social rights
Lincoln
Context: U.S. Civil War (The Southern states wanted to gain autonomy and created the Confederate States of America, which main source of income was agriculture, done mainly by slaves. On the other side, the Northern states were fighting for the Union of the U.S.)
Plot: Abraham Lincoln strives to abolish the slavery from the U.S, but for doing so he has to do a amendment to the constitution that is approved through a voting at the House of Representatives. If he doesn't do it before the war ends, the Southern states will impede this from happening
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'The end justifies the means': Even with all his party (Republican) in favor, Lincoln still needed 20 votes to approve the amendment, so he order his Secretary of State and some lawyers to bribe, threaten or sabotage the congressmen as to get those votes. In this case the end does justify the means because the finality of all this bribery was to abolish slavery, one of the most horrible ways of restraining someone from his/her right of freedom and equality.
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Montesquieu
Context: Enlightenment, an era were different intellectuals searched for the explanation of things through reason
Separation of powers: The State is separated in executive power (concerning the national laws), the legislative (concerning the generation of laws) and the judicial (concerning the civil law)
Difference between U.S and Spain Rule of Law: Both have the power separated in the same way as Montesquieu proposed; however, in the U.S the three power are directly elected by the people, which gives more autonomy and the same amount of power to each of them, while in Spain the executive power choses the other two, having more power than the legislative and judiciary which could furthermore generate corruption and abuse
Types of Rule of Law: They all started as a Liberal Rule of Law that followed all the characteristics explained, but then they evolved in what economy and society refers
Democratic Rule of Law: The population participates directly or indirectly (through representatives) in the public affairs.
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Social Rule of Law (Welfare State): The State intervenes in the private sphere as to guarantee the welfare of the population; the goal is achieving the best benefit for them
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Origin: It arose as a manifestation of the general will during the Enlightenment, where people were claiming for the state not to intervene in the economy and for the power to be fairly divided