Rule Of Law Flashcards
Rule of law
A theoretical concept with symbolic meaning- what the law stands for. The law applies equally to all; nobody is above the law.
Importance of the rule of law
A symbolic safeguard against dictatorship; the preserve of democracy. No person shall be sanctioned expect in accordance with the law.
The law
There must be equality before the law. There must be fairness and clarity of the law.
Tony Honré
The Rule of law exists when a Government’s powers are limited by law and citizens have a core of rights that the Government are bound to uphold.
These principles mean that:
- no person shall be sanctioned except in accordance with the law (both civil and criminal)
- there is equality before the law, no discrimination on any grounds
- there must be fairness and clarity of the law.P
Professor A.V. Dicey
Dicey held that there were 3 elements that created the rule of law:
- an absence of arbitary power
- equality before the law
- supermacy of ordinary law.
Arbitary power
The state’s power must be controlled by the law. Decisions made by Government ministers can be challenged by judical review.
Equality before the law
No one is above the law, everyone must be treated equally.
The law must be supreme
Parliament legislation must be above all, but judical decisions can still create law.
Criticisms of Dicey
This conflicts with other fundamental principles: arbitary power vs Parlimentary supremacy. Laws passed by parliament cannot be challenged by judical review. This is different from other countries where the legislative body is subjected to the rule of law, so laws passed by them can be challenged in courts. Equality before the law just means formal equality - disregards the differnce between people in terms of wealth, power and connections.
Dicey’s view on law is based on abstract ideas, making it difficult to apply to real life situations.
F.A. von Hayek
Agreed with Dicey on the key component of absence of arbitary power, however believed that the rule of law became weaker. The provided actions of the state were authorised by legislation, any act in accordance of it was awful. The modern state is directly involved in regulating economic activity and this is in conflict with the rule of law.
Joseph Raz
Recognised that the rule of law was a way of controlling discretion rather than preventing it completely. He saw it as negative value, acting to minimise danger of the use of discretionary power in an arbitary way. The key point which emerged from the rule of law was that the law must be capable of guiding the individuals’ behaviour.
Raz’s Principles
Raz set out a number of principles coming from this wider ideas:
- there should be clear rules and procedures for making laws
- the independance of the judicary must be guaranteed
- the principles of natural justice should be observed; these require an open and fair hearing with all parties being given the opportunity to put their case
- the courts should have the power to review the way in which other principles are implemented to ensure that they are being operated as demanded by rule of law.
The Constitutional Reform Act (2005)
This act recognised the rule of law and the importance of indepemdance of the judiciary.
Section 1: This act does not adversely affect:
a) the existing constitutional principle of the rule of law.
b) the Lord Chancellor’s existing constitutional role in relation to that principle.
Section 3 (1): ‘The Lord Chancellor, other ministers of the Crown and all with responsability for matters relating to the judiciary or otherwise to the administration of justice must uphold the conviction independance of the jury’.
The independance of the jury
Juries are independant assessors and assumed modern roles as deciders of fact.
The independance of the jury cases
Bushell’s case (1670) - The juries independance became firmly established here and that the judge could not challenge their decisions.
McKenna (1960) - Judges must respect the independance of the jury.
