András Zs. Varga: Beyond the Rule of Law. Nr. 2012/44.

The paper was presented at a conference dedicated to the idea of good government, good governance and good state („Jó kormányzás, jó kormányzat, jó állam”, PPKE-JÁK, 19 December, 2012). It demonstrates with the support of the uncertainty principle of Heisenberg and the incompleteness theorems of Gödel that the concept of the rule of law is built on the hypothesis that the legal order is complete and certain. These presuppositions necessarily lead to arbitrary court decisions when the limits of legal interpretation are at stake. In a constitutional state based on the separation of powers, the triangle of legality-legitimacy-efficiency cannot be avoided, but in the same time being legal, legitimate and efficient is almost impossible for a government, one edge of the triangle will necessarily dominate. In our culture based on the rule of law it seems that legality is the dominating edge of government-architecture. Courts with the power of interpreting the laws are not only the final forums of legal debates but also the final guardians of the government. If there is no counter-balance of their free-interpretation, the outcome of the control of governmental activity will be as arbitrary as the ex iure divinum government of a sovereign and uncontrolled monarch. Good government needs something that balances the ultra-estimation of the rule of law. A substantive principle which could help to find this balance could be the following: "public weal respecting personal dignity and human rights is the fundamental, inviolable and incontestable criterion of good government".

You can download the working paper here.