Rule of law Flashcards
is there a clear definition of the rule of law ?
no there are many approaches to defining the rule of law
when was ROL developed
developed during 19th century
through constitutional reform act 2005
what are the 2 approaches of ROL
formalistic
substantive
what is the formalistic approach concerned with and not concerned with.
only concerned with the format the law was created and promulgated .
not concerned with what the law says.
what is a substantive approach to ROL
opposite to formalistic and encompasses fairness, certainty and is based upon what is morally right in society.
what was Ray’s 7 principles of the ROL
legality
clear
accessible
protect and uphold human Rights
equality before the law
independent impartial judges
democratic legitimacy
Diceys 3 characteristics on ROL
- no one should be punished unless proven they broke the law. (innocent until proven guilty)
- no one is above the law (Phillips v Eyre)
- ROL found throughout British constitution
what is the Morant bay rebellion
started Jamaica 1865
due to racial tensions and injustices of black Jamaicans being discriminated.
439 died/executed
little investigations on the actions
shows how the ROL should be followed and if not it can lead to injustices.
what is a content free concept
laws should be applied without bias and not influenced by personal beliefs
(focused on fairness)
what is a content rich concept
What are 4 of Lord Bingham’s 8 sub rules
- law accessible, clear and predictable
- law should apply equally to all
- ministers and public officers should apply the law in good faith
- law should protect and uphold HR
what role do judges play in the ROL
important role
they interpret statutes to be compatible with ROL
(statutory interpretation)
can use ECHR as it was made domestic law by HRA 1998
