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The rule according to a higher law means that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice.〔West's Encyclopedia of American Law (in 13 volumes), 2nd Ed., edited by Jeffrey Lehman and Shirelle Phelps. Publisher: Thomson Gale, 2004. ISBN 0-7876-6367-0.〕 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.〔M.N.S. Sellers, ''Republican Legal Theory: The History, Constitution and Purposes of Law in a Free State'', Basingstoke, 2004〕 "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.〔Edward S. Corwin, ''The “Higher Law” Background of American Constitutional Law'' (1955).〕 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.〔Leslie F. Goldstein, ''Popular Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten Law'', Journal of Politics 48 (1986): 51–71〕 "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".〔Mortimer Sellers, ''An Introduction. The Rule of Law in Comparative Perspectives'', edited by Mortimer Sellers and Tadeusz Tomaszewski, Springer, Heidelberg - London - New York, 2010, pp. 4–5. ISBN 978-90-481-3749-7.〕 ''The rule according to higher law'' is a practical approach to the implementation of the higher law theory which creates a bridge of mutual understanding (with regard to universal legal values) between the English language doctrine of the rule of law, traditional for the countries of common law, and the originally German doctrine of ''Rechtsstaat'', translated into other languages of continental Europe as ''État de droit'' (Fr.), ''Estado de derecho'' (Sp.), ''Stato di diritto'' (It.), and ''Правовое государство'' (Ru.).〔(Peter Barenboim, Naeem Sidiqi, ''Bruges, the Bridge between Civilizations: The 75 Anniversary of the Roerich Pact, Grid Belgium, 2010 ). ISBN 978-5-98856-114-9〕 The latter doctrine is the product of continental European legal thought which had adopted it from German legal philosophy. Its name can be translated into English as "state of law" —meaning the state in which the exercise of governmental power is kept in check by the higher law rather than by the changeable law established by this state. Amartya Sen mentioned that the legal theorists in ancient India used term of classical Sanskrit "nyaya" in the sense of not just a matter of judging institutions and rules, but of judging the societies themselves.〔Amartya Sen, ''Global justice'' in ''Global Perspectives on the Rule of Law'', edited by James J. Heckman, Robert L. Nelson, Lee Cabating and Paul Lepore, Routledge, London and New York, 2010.〕 ==Examples== Before the U.S. Civil War, African Americans were legally denied equal rights and freedoms pursuant to formally valid codes prescribing the relations between master and slave. Although these codes were ''de jure'' fully suitable for application in legal practice, their enforcement by the then U.S. government ''de facto'' violated basic human rights of a significant part of the population. William H. Seward famously proclaimed that slavery is forbidden under "a higher law than the Constitution." Generally speaking, the occurrence of such "justly enacted unjust laws" fully depends on the stance taken by the country's political leadership towards the rule of law principle. In some countries, the political leaders assert that the rule of law is purely a procedural concept. Therefore, they argue that any government may strip its subjects of their fundamental freedoms or infringe their vital interests so long as this is done by way of a duly implemented legal mechanism. For example, at the Nuremberg trials, in an attempt to justify their crimes against Jewish and Romany population of Europe during World War II, some of the former leaders of Nazi Germany argued that they had broken none of the laws effective when Hitler had been in power. It was only by invoking the rule according to a higher law that the Allied prosecutors were able to overcome such defenses.〔(Introductory note by Antonio Cassese ) for General Assembly resolution 95(I) of 11 December 1946 (Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal) on the website of the (UN Audiovisual Library of International Law )〕 In other countries, conversely, the political leaders assert that all written laws must be kept in line with the universal principles of morality, fairness, and justice. These leaders argue that, as a necessary corollary to the axiom that "no one is above the law," the rule of law requires the government to treat all persons equally under the law. However, the proclaimed right to equal treatment is susceptible to instantly becoming void each time the government denies a sufficient level of respect, dignity, and autonomy to a certain class of individuals or to human rights in general."〔Augusto Zimmermann, ''Constitutions Without Constitutionalism: The Failure of Constitutionalism in Brazil, The Rule of Law in Comparative Perspectives'', edited by Mortimer Sellers and Tadeusz Tomaszewski, Springer, Heidelberg - London - New York, 2010, p.101. ISBN 978-90-481-3749-7.〕 Therefore, the unwritten and universally self-explanatory principles of equality, autonomy, dignity, and respect are said to overrule conventional written laws enacted by the government. It is these principles that are often referred to as "natural law." They also constitute the basis of the "higher law theory." 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Rule according to higher law」の詳細全文を読む スポンサード リンク
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