A/CONF. 187/3 6. This is particularly true of human rights issues. IV. Some elements or requirements of Commentaries are divided as to whether human rights individually or in general, ought to be considered elements the rule of law of the rule of law or something else that may be suppo by the rule of law but that are not essential to it. The A. The law must be comprehensive present paper resolves the issue by considering rights indi- vidually. Some, such as rights relating to access to counsel, 9. The essence of judicial decision-making is that it the courts and effective remedies, are directly essential to involves the application of legal rules and not other the rule of law. Others are not, although many do support less-tangible considerations to whatever facts are at hand the rule of law indirectly. Freedom of expression supports To replace purely ad hoc decision-making, the law must viable, legitimate and self-regulating structures to formulate public policy and develop legislation, for provide rules on which decisions can be based. The details example. It must be emphasized, however, that this is more must exist when called upon. Legal systems commonly a question of degree than of distinction, and the position incorporate legislative mechanisms that develop or adjust taken here should be regarded as the drawing of a line for laws to keep pace with social changes and judicial and purposes of discussion rather than as a fundamental tatement about the nature of the rule of law advisory mechanisms to interpret and apply general rules to specific situations. Underlying these are default rules 7. A second fundamental point is that discussions often that govern situations in which no other rule exists. In focus on elements of the rule of law to the point where the criminal justice systems, the principle nulla poena sine nature of the rule of law itself can be overlooked. The rule lege-that there be no criminal liability or punishment of law is a system of principles that relate to the legal unless the act committed constituted an offence in law governance of societies, but it is not itself primarily a legal when it occurred-is an example of this system In systems where it is well-developed, the rule of law is a much broader and more deeply rooted social and cultural structure. It effectively anchors and stabilizes B. The law must be clear, certain and legality, while maintaining a firm connection to social accessible development and cha ange. ensure ring that laws and legal practices keep pace. This has profound implications for 10. Criminal law must be sufficiently clear to guide both those seeking to develop the rule of law where it is absent, executive and judicial decision-making. It must also be if it has been absent for some time or never existed to understood by the general population, which is generally presumed to know it and expected to comply with it. The 8. The development of legal infrastructure is essential drafting itself may not be clear to the average person, but to the rule oflaw, but also essential, and far more difficult it must be clear and certain enough to form the basis of to develop, are social and cultural traditions of legitimacy, commentary by others, including professional lawyers and acceptance of legal authority and respect for law Building judges. Criminal justice measures can lead to the most new courts of law or law schools and training those who extreme of consequences for those accused of crimes, will work in them may take a few years, but the develop- which requires a high degree of certainty ment of truly solid traditions of legality is apt to be a 11. Most people do not read statutes. They understand process spread over several generations. What might be the laws that are relevant to their activities through com done over the shorter term is to develop social conditions mentaries and publications ranging from government and that will lead to the adoption of a rule of law tradition over professional gazettes to the documents of interest groups time. It is also possible to provide the infrastructure needed and the public media, and the viability of these in pro to make the rule of law both viable and preferable to other viding diverse, accurate and accessible information is an means of governance. One must, however, be realistic in important support structure for the rule of law in civil assessing goals and expectations societies. where more detailed or authoritative information is needed, professional legal counsel may be sought, and the availability and accessibility of counsel is also important, not only in proceedings but in providing general advice as wellA/CONF.187/3 3 6. This is particularly true of human rights issues. Commentaries are divided as to whether human rights, individually or in general, ought to be considered elements of the rule of law or something else that may be supported by the rule of law but that are not essential to it. The present paper resolves the issue by considering rights indi￾vidually. Some, such as rights relating to access to counsel, the courts and effective remedies, are directly essential to the rule of law. Others are not, although many do support the rule of law indirectly. Freedom of expression supports viable, legitimate and self-regulating structures to formulate public policy and develop legislation, for example. It must be emphasized, however, that this is more a question of degree than of distinction, and the position taken here should be regarded as the drawing of a line for purposes of discussion rather than as a fundamental statement about the nature of the rule of law. 7. A second fundamental point is that discussions often focus on elements of the rule of law to the point where the nature of the rule of law itself can be overlooked. The rule of law is a system of principles that relate to the legal governance of societies, but it is not itself primarily a legal system. In systems where it is well-developed, the rule of law is a much broader and more deeply rooted social and cultural structure. It effectively anchors and stabilizes legality, while maintaining a firm connection to social development and change, ensuring that laws and legal practices keep pace. This has profound implications for those seeking to develop the rule of law where it is absent, if it has been absent for some time or never existed to begin with. 8. The development of legal infrastructure is essential to the rule of law, but also essential, and far more difficult to develop, are social and cultural traditions of legitimacy, acceptance of legal authority and respect for law. Building new courts of law or law schools and training those who will work in them may take a few years, but the develop￾ment of truly solid traditions of legality is apt to be a process spread over several generations. What might be done over the shorter term is to develop social conditions that will lead to the adoption of a rule of law tradition over time. It is also possible to provide the infrastructure needed to make the rule of law both viable and preferable to other means of governance. One must, however, be realistic in assessing goals and expectations. IV. Some elements or requirements of the rule of law A. The law must be comprehensive 9. The essence of judicial decision-making is that it involves the application of legal rules and not other less-tangible considerations to whatever facts are at hand. To replace purely ad hoc decision-making, the law must provide rules on which decisions can be based. The details of rule-making may vary, but the basic rules themselves must exist when called upon. Legal systems commonly incorporate legislative mechanisms that develop or adjust laws to keep pace with social changes and judicial and advisory mechanisms to interpret and apply general rules to specific situations. Underlying these are default rules that govern situations in which no other rule exists. In criminal justice systems, the principle nulla poena sine lege—that there be no criminal liability or punishment unless the act committed constituted an offence in law when it occurred—is an example of this. B. The law must be clear, certain and accessible 10. Criminal law must be sufficiently clear to guide both executive and judicial decision-making. It must also be understood by the general population, which is generally presumed to know it and expected to comply with it. The drafting itself may not be clear to the average person, but it must be clear and certain enough to form the basis of commentary by others, including professional lawyers and judges. Criminal justice measures can lead to the most extreme of consequences for those accused of crimes, which requires a high degree of certainty. 11. Most people do not read statutes. They understand the laws that are relevant to their activities through com￾mentaries and publications ranging from government and professional gazettes to the documents of interest groups and the public media, and the viability of these in pro￾viding diverse, accurate and accessible information is an important support structure for the rule of law in civil societies. Where more detailed or authoritative information is needed, professional legal counsel may be sought, and the availability and accessibility of counsel is also important, not only in proceedings but in providing general advice as well