English legal system: Rule of law Flashcards
What is the rule of law ?
The idea that everyone is subjected to and accountable to the law which is fairly applied and enforced .
How does the rule of law support democracy ?
It safeguards against dictatorship as no single organ of government can exercise power in an unchecked way.
According to Tony Honroe, when does the rule of law exist?
When a government’s powers are limited by the law and citizens have rights that the government are bound to uphold
What are the features of the rule of law ?
- No person should be sanctioned except in the accordance of the law
- Equality before the law = no discrimination
- Fairness and clarity
According to A.C Dicey , what three elements created the rule of law ?
- An absence of arbitrary power on the part of the state
- Equality before the law
- Supremacy of ordinary law
What is the “ an absence of arbitrary power of the state “ ?
The state’s power is controlled by the law to avoid the state having wide discretionary powers.
Actions and decisions made by the government can be challenged by judicial reviews.
What is the meaning of “everyone must be equal before the law “ ?
No matter the circumstances , no person is above the law and those who carry out functions of the state must be accountable under the law for their actions .
What is the meaning of the supremacy of the law ?
that all individuals, including government officials and private citizens, are subject to and must abide by the law.
What are the problems with Dicey view ?
- It conflicts with parliamentary supremacy - although there should be no arbitrary power on the part of the state, Parliament can grant arbitrary powers to the state.
- It disregards the difference between people in terms of wealth, power and connections.
What F.A Von Hiayeks view on the rule of law?
There should be absence of arbitrary power of the state.
The rule of law has become weaker as actions of the state are authorised by legislation .
The state is directly involved in regulating economic activity - this conflicts with the rule of law
What is Joseph Raz’s view on the rule of law ?
The rule of law controls discretion rather than prevents it.
The law must be capable of guiding the individual’s behaviour.
What were the principles Joseph Raz set out so the law can guide individuals’ behaviour?
- There should be clear rules and procedures for making the laws
- The independence of the judiciary must be guaranteed
- The principles of national justice should be observed = open and fair hearing with all parties.
- The courts should have the power to review the way principles are implemented to ensure that they are being operated as demanded by the rule of law.
The process by which the laws are made must be ….
- Open and fair
- passed through both houses of parliament
- Delegated legislation are regulated through statutory instruments.
What are the features of the rule of law and the legal system ?
Every defendant in criminal cases must have a fair trial. e.g. trial by jury.
No person can be imprisoned without a trial.
The system should be free from discrimination, corruption and the influence of public officials.
The civil justice system should be accessible and
affordable.
What is substantive law ?
Law in different areas of law …
- Criminal law sets out the definitions of criminal offences
- Tort law sets out what rights and responsibilities people owed to each other.
- law of human rights sets out the various rights that individuals are entitled to expect.
