Rule of Law Flashcards
two types of rule of law
procedural law
substantive law
what is procedural law
rules and principles that help us understand the legal system and how it works
substantive law
areas of law such as criminal, contract and tort. made up rules within statutes and case law.
main principle of rule of law
everyone is subject to and accountable to the law. the law is fairly applied and fairly enforced. supports democracy and prevents dictatorship. gov and officials are also subject to the law. authority is distributed meaning no single person holds all power.
summary of the rule of law
governments powers are limited by law and citizens have core rights that the government must uphold:
no one must shall be sanctioned except in accordance with the law (both civil and criminal)
there must be equality before the law (no discrimination on any grounds).
there must be fairness and clarity
Dicey
he believed that the rule of law was not only important in our legal system, but it distinguished ours from others across in Europe.
Dicey’s three elements
an absence of arbitrary power on the part of the state.
equality before the law
supremacy of ordinary law
1) absence of arbitrary power of the state
this means the states power must be controlled by the law. in our system gov ministers can be challenged by judges.
Dicey on arbitrary powers
Dicey stated that the state must not have wide discretionary powers as these can be exercised in an arbitrary way, this should be avoided to comply with the rule of law
2) everyone must be equal before the law
doesnt always work in practice.
it doesnt matter how rich or powerful someone is, the law must deal with them in the same way. also, those who work for the state must be held accountable for their actions.
3) the law must be supreme
Dicey’s view is that judicial rule (case law judgements) are the best way to change the law whilst still upholding the rule of law. In Dicey’s time this was true of our system in England and Wales
an absence of arbitrary power on the part of the state
the state’s power must be controlled by the law. the law must set limits on what the state can and cannot do.
equality before the law
no person must be above the law. it does not matter how rich or powerful the person is, the law must deal with them the same way.
supremacy of ordinary law
developments should be made through judicial ruling, common law which is applicable to everyone.
criticisms of Dicey’s principle
parliamentary supremacy being another aspect of legal system- parliamentary laws are supreme above others eg. case law. it states that no other body has the right to override or set aside an Act of Parliament.
