Rule of Law Flashcards
1
Q
What are the 3 key aspects of the Rule of Law given by Dicey?
A
- All government actions must be authorised by law
- No man is above the law, and everyone is equal before the law
- The law is the result of previous judicial decisions determining the rights of the private person
2
Q
In What way did Jennings disagree with Dicey?
A
- He believed that rules were the source of our rights, not that our rights were the source of the law
- Equality before the law is flawed as people of different ages and capacities are treated differently
3
Q
What does TRS Allan believe about the Rule of Law and Parliamentary Sovereignty?
A
- Parliamentary Sovereignty is given life by democracy
- The Rule of Law is a procedural principle but would have to become substantive if Parliament legislated against democracy
4
Q
How does Lord Bingham extend Dicey’s Principle of the Rule of Law?
A
- He has a more content-rich, rather than facilitative approach to the Rule of Law
- ‘The law must provide adequate protections of fundamental rights’
5
Q
Why was Entick v Carrington [1765] important for the Rule of Law?
A
- It established the limits on executive power
- The state can only act lawfully in accordance with statute or the common law
- Lord Camden - ‘If it is law, it will be found in our books’
6
Q
Is the Rule of Law really supported by Parliamentary Sovereignty?
A
- No, according to Loughlin, legislation has been passed which has limited fundamental rights
- i.e. The Prevention of Terrorism Acts 1974 onwards
7
Q
Which Key Case shows how the Rule of Law is limited?
A
- Malone [1979] - a key failing of the Rule of Law as a tool for the protection of freedom
- The executive can do anything that is not prohibited by law
8
Q
What do Raz and Craig suggest?
A
- The rule of law should be a ‘thin’ concept and should relate to an impartial process
- It should not be associated with social or economic equality
9
Q
What are Dworkin’s 2 conceptions of the Rule of Law?
A
- Rule-Book Conception: The power of government should only be used against citizens in accordance with the explicit rules set out
- Rights Conception: Moral and Political rights must be recognised in a positive way so they can be enforced (substantive justice)
10
Q
Does the Rule of Law Oppose Parliamentary Sovereignty?
A
- No, according to Dicey;
1. The courts interpret the will of Parliament to prevent Parliament from restricting personal liberty - The Rule of Law works alongside Sovereignty of Parliament