RULE OF LAW Flashcards
RULE OF LAW
- No one should be punished except for breaches of law
- ‘Equal subjection to the law’ (equality before the law)
- A certainty of punishment if the law is broken
AV DICEY
Theory of rule of law
Lord Hailsham
Government is dominated by ‘elective dictatorship’
Plato (Natural law)
Behind ever-changing forms of social and political life, lay unchanging archetypal forms for
Aristotle (Natural Law)
Believed that the purpose of law was to encourage humankind to live in accordance with virtue.
Aquinas
Human laws have a moral basis – Natural law could be penetrated through our god-given natural reason and guides us towards the attainment of the good life on earth.
Jefferson
The purpose of law was to protect these god-given and inalienable rights
Mill
Positive law is required to prevent an individual from harming another (Harm principle) – The law has no right to interfere with ‘self-regarding’ actions
Hart
Primary and secondary rules theory - Primary = regulate social behaviour, secondary, rules which confer power upon the institutions of government (constitution)
Austin
Legal positivism - ‘law is law because it is obeyed’
Hobbes - why order?
To prevent natural disorder
Burke
Order must be maintained in order to protect the social whole and the organic society. If one part is damaged then the whole is threatened
Scruton
‘Order is a natural necessity’
Rousseau
‘Man is born free but everywhere in chains’
Socialists
Capitalism encourages human beings to be self-seeking and competitive