Rule of Law Flashcards
John Austin
Defined law as being a command issued from a superior to an inferior and enforced by sanctions
John Salmond
Defined law as being the body of principles recognised and applied by the state in the administration of justice
Another definition
A formal mechanism of social control, enforced through the courts and the legal system.
International law
Concerned with disputes between nations, comes from the EU
National law
Applies to country as whole.
Public law
Constitutional law, controls method of government. Administrative law, controls how Ministers of State and other bodies. Criminal law, sets out types of behaviour which if beached are punished by state through courts
Private law
Deals with civil matters, governs: Contract, Tort, Family, Law of succession, Company law, Employment law
Burden of proof
Criminal: being beyond reasonable doubt, Civil: balance of probabilities
Rule of Law
Fundamental principle of constitution: the state should govern its citizens in accordance with rules that have been agreed upon
Unwritten constitution, but set of rules about who governs and powers
Acts of Parliament - statute law, Judicial decisions - judge’s decisions explain reason behind sentencing, Conventions - not laws but traditions that have been followed over time
Dicey
Considered rule of law as an important feature that distinguished English law from other countries in Europe
3 elements to rule of law
No sanction without breach - no one should be punished unless they have broken the law, One law should govern everyone - no one above/below the law, Rights of individuals secured by decisions of judges
Law and State
State’s power must be controlled by law, sets limits on what state can do.
Rule of Law and Natural Justice
Require that everyone be subject to the same law, law should do justice by not punishing those whose actions are innocent or justified.
Darling J
The law, like the tavern, is open to all
Lord Justice Matthews
In England justice is open to all, like the Ritz
FA von Hayek
Agreed with Dicey, essential component of the rule of law is absence of any arbitrary power on part of the state. 1971: stripped of all technicalities, the Rule of Law means that the government in all its actions is bound by the rules fixed and announced in advance. Believed law had become weaker because providing the action was authorised by state, act was lawful
Joseph Raz
Recognised rule of law was way of controlling discretion than preventing it completely. Saw it as having negative value, acting to minimise danger o use of discretionary power in arbitrary way
Raz’s Principles
there should be clear rules and procedures for making law; the independence of the judiciary must be guaranteed; the principles of natural justice should be observed, requiring open and fair hearings for all parties; the courts should have the power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the rule of law
3 main principles of rule of law
Separation of powers; supremacy of Parliament, Rule of law
Separation of powers, prevents abuse of power and conflict of interests. Overlap between executive and legislature.
State powers separated, Montesquieu theory: Executive - government forming cabinet and deciding on law making agenda. Legislature - Parliament. Judicial - judges
Act supports Montesquieu theory within separation of powers. Recognised rule of law and importance of independence of judiciary, separating the House of Lords judges as law makers, from those sitting in Supreme Court
Constitutional Reform Act 2005
Supremacy of Parliament
Parliament highest power, decisions made by respective parliaments do not bind others. Been affected by EU membership
Everyone is subject to the law
If government does not like result, can usually reverse through legislation
Home Secretary tried to prevent purchase of TV licenses to beat rise in cost of licences
Congreve v Home Office 1976 CA
Despite injunction, Home Office deported M, claiming misunderstanding
M v Home Office 1993 HL
Lord Denning
Be you ever so high, the law is above you. Gourmet v Union of Post Office Workers and Others 1977 CA
Independent and impartial judiciary
The law should be applied without fear or favour, malice of ill will, or prejudice, bias or fear from others, particularly the powerful
Human Rights Act 1998, implemented October 2000
though technically the ECHR is not superior to Parl, effects of s3 and s4 cant be underestimated
For UK written constitution
Make things clearer; Accessible for citizens; Greater protection of rights and liberties
Against UK written constitution
Difficult to change; Unwritten is part of our heritage; Unwritten allows flexibility
Judge’s independence
Crucial aspect of law, impartial and non-political. Main concern was appointment process, controlled by prime minister and Lord Chancellor.
Willingness of ministers to publicly criticise courts
Particularly Home Secretaries
Condemned release of nine Afghan hijackers
David Blunkett: 2003
Criticised release of terrorist suspects from Belmarsh
Charles Clarke: 2005
Attacked decision not to deport the murderer of London Headmaster Phillip Lawrence, when he is released
John Reid: 2007
