Definition of the rule of law Flashcards
What are the main principles of the rule of law
All people are subject to and accountable to law that is fairly applied and enforced, and the process by which the laws of the country are enacted, administered and enforced must be fair
How is the rule of law sovereign
No one can be above the law
What is the rule of law a safeguard against
Dictatorship
Who is also accountable under the law
The government and its officials
How is authority distributed
In a manner that ensures that no single organ of government can exercise power in an unchecked way
What did dicey think about the rule of law
Thought it distinguished English law from law in other European countries
What were the three elements of law proposed by dicey
An absence of arbitrary power on the part of the state, equality before the law, supremacy of ordinary law
What is meant by an absence of arbitrary power of the state
The states power must be controlled by the law
What must the law set limits on
What the state can and can’t do
How can government ministers actions be challenged
In court by judicial review
What is one of the main aims of the rule of law
To avoid the state having wide discretionary powers
What did dicey recommend be avoided
Discretion exercised in an arbitrary way
When was ‘the law must be supreme’ particularly true
When the main developments up to that time were through judicial decisions rather than being created by parliament
What is meant by everyone must be equal before the law
No one should be above the law not matter how rich or powerful a person is
What major fundamental principle does diceys views conflict with
Parliamentary sovereignty
What can statutes not be challenged by
Judicial review
What is the problem with diceys idea of equality before the law
It disregards differences in wealth, power and connections which can only be fixed if there are ways to address these differences
How could equality before the law be addressed
In order to allow the poorest in society to enforce their right of equality before the law, it is necessary to have some form of state funding in cases
What is diceys view of the rule of law based on
Abstract ideas
Who was Hayek
He agreed with dicey the key component of the rule of law is the absence of arbitrary power on the part of the state
Who was Raz
Recognised the rule of law as a way of controlling discretion rather than preventing it completely
Who was Honoré
Pointed out that the rule of law exists when a governments powers are limited by law and is bound to uphold this core of citizens rights
What were the core rights stated by Honoré
No person shall be sanctioned except in accordance with the law, there is equality before the law and must not be discrimination on any grounds, there must be fairness and clarity of the law
What did the constitutional reform act 2005 do
Recognise the rule of law and the importance of the independent judiciary
Who was lord Bingham
A former lord chief justice and senior law lord in the House of Lords
What did Bingham point out
The constitutional reform act doesn’t define the rule of law
What must the law be according to Bingham
Accessible, and as far as possible, intelligible, clear and predictable
What should be resolved by the application of law according to Bingham
Questions of legal right and liability
When should the laws not apply according to Bingham
When objective differences justify differentiation
What should the law protect according to lord Bingham
Fundamental human rights
What should the law provide the means for according to Bingham
Resolving civil disputed which the parties themselves are unable to resolve without excessive cost or delay
How should ministers and public officers exercise power according to Bingham
Reasonably and in good faith
What provided by the state should be fair according to Bingham
Adjucative procedures
