Rule Of Law

Question 1

Dicey defintion of the rule of law, its 3 aspects

Answer 1

-first aspect indicates that The absolute supremacy of regular law over arbitrary power, excluding the wide discretionary power of the government;

The law must be clear and certain, the state should be empowered, but we must know what the powers of the state are. But must not be overly suppressing

-The second aspect of Dicey’s conception of the rule of law indicates that in terms of the equality before the law, no man is above the law;

Regardless of what an individual’s rank or condition is, he is subjected to the ordinary law of the realm and be bounded to the jurisdiction of the ordinary tribunals. As a result, no matter an ordinary private citizen or a state official breached the same law, they would be treated in the same way. It denoted that the state officials were not given any special privileges or protections from the law of the land. Thomas Fuller had also quoted that “Be you ever so high, the law is above you.”

The third aspect denotes that the principles of the constitution are the result of the ordinary law of the land; (Common law)

Dicey stated that Britain had a court-based constitution (in effect, a common law constitution), in the sense that decisions made by the judges directly resulted the principles of the constitution which concerning the rights of private persons. This reveals Dicey’s belief that the common law affords greater protection to the citizens than a written constitution.

Question 2

Duncan v Jones [1936]

Answer 2

A woman had been ordered not to start a public meeting by a policeman, who reasonably feared (based on past experience) that disorder would be created by the protest.

The court distinguish it from Beatty, saying that it has nothing to do with whether a protest can be stopped due to fear of other people causing disorder (Beatty answered that), and say that in this case, criminal damage and public disorder are part of the meeting and caused by those involved in it.

Given this, the police were entitled to prevent it occurring and arrest the woman concerned.

This may act as a critique of Diceys idea that common law protections are a greater system than codified rights

Question 3

Binghams Characteristics of Rule of law

Answer 3

1. The law must be accessible and so far as possible intelligible, clear and predictable
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion
3. The laws of the land should apply to all to the extent that objective differences justify differentiation
4. The law must afford adequate protection of fundamental human rights (is this really a part of RoL?)
5. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to solve
6. That ministers and public officers at all level must exercise the powers conferred on them in good faith
   7. Decisions made by the adjudicators who, however described are independent and impartial: independent in the sense they are free to make decisions free from the expectation of the government, in Addition, a matter should not be finally heard decided against any party until they have been heard, a person potentially subject to any liability or penalty should be adequately informed of what is said against him.
7. Requires the compliance of the state in International law, whether derived from treaty or custom. It governs the conduct of the nation.