Rule of Law Flashcards
Formalistic approach to the rule of law.
The rule of law means everyone, both people and officials, must follow the laws that are made public and enforced by the courts.”
Who defined the formalistic approach?
Tom Bingham
3 Things Raz’s principles say the rule of law should be.
- Clarity and Accessibility: Laws should be clear and accessible to everyone.
- Stability and Consistency: Laws should be stable and not change 3. frequently.
- Laws should protect individual rights and freedom
What does Raz say the rule of law is designed to do.
Clarity and Accessibility: Laws should be clear and accessible to everyone.
Stability and Consistency: Laws should be stable and not change frequently.
What are three characteristics of Dicey’s Rule of Law
- No-one can be punished unless it can be proven that they broke the law
- No-one is above the law, which means that everyone is accountable to the law
- The rule of law is found throughout the British constitution as a result of judicial decisions
In support of the second point, Dicey provides the example of the case of Phillips v Eyre
What happened in the Morant Bay Rebellion?
In 1865, a protest took place in Jamaica where the citizens protested over their rights.
It was said that their rights had been violated as the military and government forces enacted severe punishments killing over 400 people, this included floggings and the burning of houses. It was said that constitutional rights were violated.
What was the aftermath of the Morant Bay Rebellion?
Eyre was replaced as Governor in 1866 and Jamaica was ruled directly from London
Eyre passed a retrospective law giving him immunity for all acts he authorised during the period of martial law
Normal definition of the rule of law
That everyone is accountable to the law, there are laws and systems put in place to govern all.
What is the case behind the Morant Bay Rebellion?
Phillips v Eyre
Why did Eyre win the case although laws are meant to not meant to be retrospective?
Eyre won the case because he showed that his law wasn’t meant to be retroactive, even though there’s usually a rule against that. Since Eyre’s law was clear about giving him immunity from past actions, it was okay. This decision supported the idea that everyone should follow the law equally, without any unfair advantages.”
What is the substantive approach to the rule of law according to Tom Bingham?
All people and authorities in the country should obey the laws that are made public and enforced by the courts
What is the difference between the formalistic and substantive approach to the rule of law?
The substantive approach emphasizes fairness and justice in laws and their application, while the formalistic approach focuses on procedural aspects like clarity and non-retroactivity.
2 sub rules of Lord Binghams substantive approach
- The law must be accessible and so far as possible intelligible, clear and predictable.
- The law must be accessible and so far as possible intelligible, clear and predictable.
Main difference between Raz and Binghams approach to the rule of law.
Lord Bingham believes that simply following legal procedures doesn’t make a system respectful of the rule of law; a system that unjustly persecutes its people, even if it follows legal processes, doesn’t uphold the rule of law whereas Raz affirms it.
Benefits of the formalistic approach.
Professor Paul Craig argues that the rule of law should serve its own purpose separately from ideas about rights, democracy, and justice, aiming to reduce harm to freedom and dignity caused by laws, without prescribing how society should be run, which is a matter for political debate
