Rule Of Law Flashcards
Describe a legal positivist
Procedural
-view the rule of law as minamalists
-like cases be decided alike
-even if it’s a bad law it’s still a law so long as it can be endorsed by a legal authority
-strict process
Lord Camden in entice “if it is a law it will be found in our books”
-no retrospective laws
-acssesable stable and certain
- no necessry connection between law and morality
Describe natural law view
Substantive
-kick started by human rights after ww2
- believe there should be morality in law if there isn’t then can’t distinguish between good and evil
- WHEN THE LAW IS EMPTIED OF MORAL CONTENT THE LAW IS UNABLE TO DISTINGUSIH BETWEEN GOOD AN EVIL - joseph
-would not view the law as where it is found but what it is ought it be
- a legal system without morality cannot command the verbal duty of obedience to the law
- in regards to formalist view that law must be cetian, this substantive approach purposrts that the law will always be inhertantly uncertain and thus ROL is also uncertain - joseph agrees
Why is legal positivist problematic
-means no morality in our laws
- no acceptance of discretion which does not reflect the current system and undermines the constitutional role the rule of law bears
What conception explains the ROL under under today’s constitution
Substantive normative
- some is positivist like speed limit or parking tickets
- most is discretionary like the word office in offence conduct - can be interpreted many ways
- consituiotnal transition where natural law favoured
- substantive concept being used to guide judicial decisions
-puts courts into a higher positions
- is it time to to consider there are limits if legislative power
What is Dickey’s first meaning of law
Government according to law
2 criticisms of Diceys 1st meaning
1- what is meant by regular law?
2-treating discretionary law as it’s contrary to the ROL -wrong
Diceys 1st meaning criticism p1
- what did he mean by regular law? Does it include ACC, social security etc. no different time
- few modern laws enjoy absolute surpremacy or predominance because they hardly existed when dicey published his 3 meanings
2nd criticism
He said that arbitry powers and wide discretion is contrary to the ROL
- dicey would have viewed many of todays statutory powers of modern government as arbitrary
Focus now is controlling the SCOPE AND EXERISE of these powers in 4 ways
4 ways the law controls the exercise of discretionary power
1- internal statutory controls
2- judicial review
3- external statutory controls
4- political controls
Lord bridge in Bennetts quote about the rule of law in general
“There is no principle more basic to any system of law then the maintaince of the rule of law itself”
What are Diceys three meanings
- Goverment according to the law “the surpremacy or regular law”
- Equality before the law
- Constitution as a result of ordinary law of the land
Critisms of dicey in general
What does diceys first meaning -“goverment according to the law” mean
-no one could be penalised except for distinct breach of law
-if someone breaks the law it must have been for a specific law or statute
-arbitrariness and discretionary executive power breached the rule of law
What does diceys second rule of law “equality before the law”mean
-no person is above the law
-politician and officials must obey the law like very one else
What does diceys 3rd meaning “ constitution as a result of the ordinary law of the land” mean
-civil liberties were secured not by constitutional but by ordinary law remedies
-the common law was more effective at securing basic rights than the constitutional codes
-a stroke of a legislators pen might abrogate a constitutional code but not rights internalised in common law principles applied in the courts
Critism of diceys 1st meaning p2
Treating discretionary power are contrary to the rule of law -wrong
Dicey treated “abitrary power” and “wide discretionary authority “ as the same thing
- he would have regarded many of the statutory powers of modern government today as arbitrary
Today we have administrative justice “where the law ends, discretion begins” -KC. DAVIS
controlled in 4 ways
Describe the 4 ways the law controls discretionary power -in relation to diceys 1st meanin
- Internal statutory controls
- modern statutes specify how, under what circumstance and for what purpose powers may be exercised
-set down procedures to make sure decion makers must have regard to in reaching decions
-padfeild -complaint must be made for minister -complaint process not meant to protect minister but to protect the scheme - Judicial review
- makes sure decision makers do not misapply statutory powers
- they review decions on the grounds of, illegality, unreasonableness and procedural impropriety
3.External statutory controls
-ensure maximum standard of decision making throughout the public sector
- eg ombudsman, OIA, NZBORA, privacy act 1993
4.political controls
- goverment ministers exercise a supervisory responsibility over their ministries or departments and are politically accountable by parliament and free press
-responsible for all acts done in their ma,e by department officials
- I’d offical smushed their powers their minister must accept responsibility and explain the remedial action proposed to minimise the damage
intro for dicey
- the concept of the ROL underpins western democratic society
- bennet “there is no principle more basic to any proper system of law then the maintaince of the ROL itself”
- ROL - hard to define there is sharp disagreemnt between the essential nature of law
- formalist vs substantive
