A/CONF. 187/3 12. Accessibility is also a requirement for legislative and not only on the legitimacy of the rule itself, but also on the judicial proceedings. Openness and transparency in popular belief that those who apply or enforce it do so with legislative proceedings supports the popular legitimacy of fairness, consistency and transparency. This applies to a the legislation that results. The same is true for judicial broad class of public servants who apply legal rules in a proceedings in which precedents are set or law is made. wide range of circumstances, but it is particularly critical Transparency is also important to the integrity and the in the case of elements of criminal justice systems such as perceived integrity or legitimacy ofjudicial proceedings in law enforcement, prosecutors and the criminal courts. In general. This requires the existence of independent and this sense, criminal justice systems are not only supported competent commentators, who must be given access to the by the rule of law, but also support it in turn. Consider, for courts and legislative proceedings, and to media that can example, cases in which the most powerful members of be used to disseminate accurate information about them to society are suspected of crimes. The system relies on rule the general population of law elements such as equality and independence to ensure that they cannot use their power to escape liability At the same time, the ability of the system to deal effec- C. The law must be legitimate: consent and tively with such cases protects the rule of law from undue compliance influences, such as bribery and intimidation. More generally such cases, if successfully concluded, set legal 13. In any society, the rule of law depends on the fact and social precedents that can strengthen the rule of law that the majority of people confronted with legal rules, (d) Legitimacy of support structures. As noted with them, thereby keeping the private life, will comply above, the rule of law is rooted in other elements of the whether in official functions or cases of non-compliance social structure, from which it draws support and stability within manageable levels. This depends to a large degree The legitimacy of legalism itself, therefore, depends to on what has been described as the"legitimacy"of the law, some degree on the popular legitimacy of many of those which in turn depends on several key factors, including: structures as well. For example, the legitimacy of the law (a) Legislative legitimacy. There must be legiti- and judicial proceedings depends to a significant extent on macy on the part of the lawmakers or the law will not be the degree to which they are reported accurately by the respected In democratic systems, this takes the form ofthe media, which depends in turn on the perception that the political accountability afforded by periodic elections, but media are both competent and independent of the State and there may be other legitimizing factors as well. Individuals the proceedings themselves. Support structures from within may sometimes govern successfully because of their criminal justice systems are also important. The openness, personal popularity or religious authority, for example, transparency and effective governance of lawenforcement (b)Legitimacy of policy. Transparency and acces- prosecutorial, judicial and penal structures support not ity of the policy development and legislative process of the rule of law itself. In most societies criminal justice affected by a particular rule had some influence on its be greatly reinforced or badly damaged, depending creation increases the legitimacy of the rule itself. Even those who disagree with a law will usually comply if there whether those structures are seen as fair, independent and is the perception that it was arrived at after full and fair effective consideration of other options. a broader range of input through popular consultation, legislative study and open D. The law must balance stability and debate also tends to mitigate or exclude unnecessarily difficult or cumbersome rules. The open discussion of flexibility issues and options also serves to educate the population, 14. Rule of law elements such as accessibility and leading to better understanding, and hence greater com- pliance, with the new law legitimacy also depend to some degree on a satisfactory balance between stability and flexibility in both laws and the abstract, but in its application to everyday situations policy will be uncertain and laws will lack legitimacy and ordinary people. Compliance depends to a large degree Rules made by short-term Governments tend to be seen asA/CONF.187/3 4 12. Accessibility is also a requirement for legislative and judicial proceedings. Openness and transparency in legislative proceedings supports the popular legitimacy of the legislation that results. The same is true for judicial proceedings in which precedents are set or law is made. Transparency is also important to the integrity and the perceived integrity or legitimacy of judicial proceedings in general. This requires the existence of independent and competent commentators, who must be given access to the courts and legislative proceedings, and to media that can be used to disseminate accurate information about them to the general population. C. The law must be legitimate: consent and compliance 13. In any society, the rule of law depends on the fact that the majority of people confronted with legal rules, whether in official functions or private life, will comply with them, thereby keeping the cases of non-compliance within manageable levels. This depends to a large degree on what has been described as the “legitimacy” of the law, which in turn depends on several key factors, including: (a) Legislative legitimacy. There must be legiti￾macy on the part of the lawmakers or the law will not be respected. In democratic systems, this takes the form of the political accountability afforded by periodic elections, but there may be other legitimizing factors as well. Individuals may sometimes govern successfully because of their personal popularity or religious authority, for example; (b) Legitimacy of policy. Transparency and acces￾sibility of the policy development and legislative process is also needed for legitimacy. The perception that those affected by a particular rule had some influence on its creation increases the legitimacy of the rule itself. Even those who disagree with a law will usually comply if there is the perception that it was arrived at after full and fair consideration of other options. A broader range of input through popular consultation, legislative study and open debate also tends to mitigate or exclude unnecessarily difficult or cumbersome rules. The open discussion of issues and options also serves to educate the population, leading to better understanding, and hence greater com￾pliance, with the new law; (c) Legitimacy of application. Law operates not in the abstract, but in its application to everyday situations and ordinary people. Compliance depends to a large degree not only on the legitimacy of the rule itself, but also on the popular belief that those who apply or enforce it do so with fairness, consistency and transparency. This applies to a broad class of public servants who apply legal rules in a wide range of circumstances, but it is particularly critical in the case of elements of criminal justice systems such as law enforcement, prosecutors and the criminal courts. In this sense, criminal justice systems are not only supported by the rule of law, but also support it in turn. Consider, for example, cases in which the most powerful members of society are suspected of crimes. The system relies on rule of law elements such as equality and independence to ensure that they cannot use their power to escape liability. At the same time, the ability of the system to deal effec￾tively with such cases protects the rule of law from undue influences, such as bribery and intimidation. More generally such cases, if successfully concluded, set legal and social precedents that can strengthen the rule of law; (d) Legitimacy of support structures. As noted above, the rule of law is rooted in other elements of the social structure, from which it draws support and stability. The legitimacy of legalism itself, therefore, depends to some degree on the popular legitimacy of many of those structures as well. For example, the legitimacy of the law and judicial proceedings depends to a significant extent on the degree to which they are reported accurately by the media, which depends in turn on the perception that the media are both competent and independent of the State and the proceedings themselves. Support structures from within criminal justice systems are also important. The openness, transparency and effective governance of law enforcement, prosecutorial, judicial and penal structures support not only the credibility of those institutions, but the legitimacy of the rule of law itself. In most societies criminal justice matters have a very high public profile. The rule of law can be greatly reinforced or badly damaged, depending on whether those structures are seen as fair, independent and effective. D. The law must balance stability and flexibility 14. Rule of law elements such as accessibility and legitimacy also depend to some degree on a satisfactory balance between stability and flexibility in both laws and law-making. If Governments change too frequently, public policy will be uncertain and laws will lack legitimacy. Rules made by short-term Governments tend to be seen as