Rule of Law Flashcards
King is under God and the law
Bracton 1220
European states have…
“A common tradition of political traditions, ideals, values”
Define the formalistic view of the Rule of Law
The rule of law means that the government must obey the law even where the law is immoral
Define the substantive view of the Rule of Law.
The substantive view means that the government must only obey the law if it is good/morally right
Dicey’s theory of the rule of law:
- Supremacy of regular law
- Equality under the law
- Constitution is the result of judicial activity
- Rule of law is post-legal
Raz’ theory of the rule of law:
- Laws must be obeyed by people, so
- Laws must be capable of being obeyed, so
- Laws must be prospective, clear, stable with an independent judiciary
Bingham’s theory of the rule of law:
- Law must be accessible & predictable
- Laws should apply equally
- Laws must protect human rights
Evaluation of Dicey’s rule of law theory:
❎ RoL can exist where law is unjust
✅ Law is open-natured and allows discretion
✅ Govt ruled by conventions as well as law
Evaluation of Raz’ theory of law:
❎RoL compatible with ‘gross violations of human rights’
✅BUT ‘deliberate disregard for RoL violates human dignity’
Describe Liversidge v Anderson and its relation to the Rule of Law
- Minister could detain threats under Emergency Powers Act 1939
- HoL: parliamentary sovereignty!
➡️Law treats different classes unequally e.g. parliamentary privilege
➡️Constitution not exclusively judge-made e.g. statute
“Human rights should be protected by the rule of law”
Universal Declaration of Human Rights 1948
“Laws must be just… Promote and protect fundamental freedoms”
Declarations of International Commissions of Jurists at Delhi 1959
How do the courts use the rule of law?
Courts use Diceyan theory with Raz, Finnis - use ultra vires doctrine, substantive and procedural
Give four examples of the rule of law being used by the courts
Liversidge - law may allow discretion
Wednesbury
Wireless Telegraphy Act - was not lawful to revoke, court overturned
M v Home Office - ‘would establish the proposition that the executive obeys the law as a matter of grace’
DENNING - “Be you ever so high…”
“The law is above you”
