Rule of Law Flashcards
LECTURE-what is similar with rule of law and seperation?
As with the Separation of Powers, the Rule of Law has been around since the time of Aristotle (384-322 BC), who stated:
‘It is better for the law to rule than one of the citizens… so even the guardians of the laws are obeying the laws’
LECTURE-most famous definition with rule of law?
Dicey (1835-1922):
LECTURE-contents of dicey?
- regular law should prevail over arbitrary power
- the law should apply equally to all, with an accountable Executive which is not above the law and which should never introduce retrospective law
- there should be no higher law other than the rights of individuals, as determined through independent courts
LECTURE-modern version of diceys 3 principles?
- nobody can be punished unless they are proven in court to have broken a law
- nobody is above the law so the courts should treat everyone equally
- the courts will provide a remedy for any breach of an individual’s legal rights
As with the Separation of Powers, the aim of the Rule of Law is to protect individuals against tyranny
LECTURE-what do the formal school of thought think with rule of law?
such as Joseph Raz and John Rawls, argue that the purpose of the Rule of Law is to provide a clear framework of laws, so that individuals can be certain of where they stand
LECTURE-what do the substantive school of thought think with rule of law?
such as Lon Fuller, and Ronald Dworkin, argue that the purpose of the Rule of Law goes beyond providing a clear framework of laws, in that it should also possess an ‘internal morality’ and provide protection for individuals against the State and against fellow individuals
LECTURE-why do substantive theorists criticise diceys theory?
- Substantive theorists criticise Dicey’s definition of the Rule -of Law for being too narrowDicey emphasised the importance of formality, certainty, and equality in law, as formal theorists would require But his definition does not acknowledge that a corrupt state could oppress its people using laws which are evil and unfair
- Substantive theorists argue that, so long as the courts uphold and apply such laws uniformly, the Government could argue that it is complying with the Rule of Law, however corrupt those laws are, when clearly the Rule of Law is not in fact being upheld
LECTURE-who was the most influential commentators for rule of law?
One of the most influential modern commentators on the Rule of Law was the former Law Lord, Lord Bingham, who died in 2010
LECTURE-what did lord bingham identify?
Lord Bingham identified eight sub-rules of the Rule of Law:
- The law should be accessible, clear and predictable
- Legal issues should, ordinarily, be resolved through legal processes, and not through the exercise of (administrative) discretion
- The law should apply equally to all
- The law should afford adequate protection for human rights
- There should be access to justice in the courts without inordinate delay or expense
- Public officials, including ministers, should exercise any powers they have been granted in good faith, and within the limits of those powers
- Legal and adjudicative processes should be fair
- The State should comply with its obligations under international law
LECTURE-how does rule of law sit in doctrine of ps?
How does the ideal of the Rule of Law sit with the legal doctrine of Parliamentary Supremacy?:
both are fundamentsl principles in regards to uk const
-The Rule of Law operates as a check on the Executive by requiring that it acts in line with Parliamentary authority
-Rule of Law can also restrict the scope of Parliamentary authority - eg R (Jackson) v Attorney General (2005)
LECTURE-how does rule of law sit in doctrine of ps? pt2?
- The political doctrine of the Separation of Powers is closely connected with the Rule of Law
- This is because it can be argued that the Judiciary, through performing its constitutional function of ‘enforcing’ law in cases that come before it, keeps the Executive - through Judicial Review - within the bounds of its lawful authority, and so upholds the law, as made and sanctioned by Parliament
LECTURE-how does rule of law sit in doctrine of ps? pt3?
They provide an insight into the evolution of the willingness of the Judiciary to interfere with the Executive’s discretionary power:
- Entick v Carrington (1765) 19 St Tr 1029
- Liversidge v Anderson (1942) AC 206
- Burmah Oil Co Ltd. V Lord Advocate (1965) AC 75
- IRC (Appellants) v Rossminster Ltd. (Respond’ts) (1980) AC 952
- M v Home Office (1993) 3 WLR 433
- A and Others v SoS Home Department (2004) UKHL 56
- R (on appl. of Mohamed) v SoS Foreign Affairs (2010) EWCA Civ 65
LECTURE-principle of Entick v Carrington (1765) 19 St Tr 1029
?
Executive acts requires legal justification (Entick 1765)
LECTURE-principle of Liversidge v Anderson ?
The granting of discretionary power to the Executive requires judicial control (Liversidge 1942 versus A and Others 2004)
LECTURE-principle of Burmah Oil Co Ltd. v Lord Advocate ?
Laws must be clear and not retrospective (Burmah Oil 1965)
LECTURE-principle of IRC (Appellants) v Rossminster Ltd. (Resp’ts) (1980) AC 952 ?
The granting of discretionary power to the Executive requires judicial control (Liversidge 1942 versus A and Others 2004)
LECTURE-principle of M v Home Office (?
The law applies equally to all (M v Home Office 1993)
LECTURE-summary of rule of law?
We should now be familiar with the key features of the Rule of Law
Strategy: exam q e.g?
‘The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the Rule of Law itself.’
Lord Bingham in A and Others v SoS Home Department (2004) UKHL 56
Evaluate the extent to which the UK Judiciary has demonstrated its independence from the Executive and the Legislature in displaying a willingness to uphold the ideal of the Rule of Law.
STRATERGY- intro
- context of rule of law
- famous def (dicey)
- 3 things
- raise formalist etc debate what rule of law requires
- refer to person quoted
- we might suggest Lord Bingham is arguing that upholding the Rule of Law should be a central concern of the courts
- We might argue that there is a growing willingness on the part of the Judiciary to defend the Rule of Law, and that we feel this because our viewpoint is supported by the evolution of the Judiciary’s attitude in case law involving the Rule of Law
STRATERGY- main body?
- A sensible way to evaluate the extent to which the UK Judiciary has demonstrated its independence from the Executive and the Legislature in displaying a willingness to uphold the ideal of the Rule of Law might be to raise and -analyse some key Rule of Law cases and use these to demonstrate our view that the Judiciary has shown itself to be increasingly willing to uphold the ideal
- case principles e.g The relevance of A and Others is that it might be argued that both decisions were made at a time when there was a ‘public emergency threatening the life of the nation’ The relevance of A and Others is that it might be argued that both decisions were made at a time when there was a ‘public emergency threatening the life of the nation’
STRATERGY- conclusion?
- refer to person
- confirm in detail
- clarify
- We might argue, for example, that Lord Bingham is correct to suggest that ‘ because evolving case law supports his view that the Judiciary has become increasingly willing to stand up for the RoL
- This trend was seen in particular in A and Others 2004 and Mohamed 2010 as both cases involved foreign affairs and yet the Judiciary still stood firm in upholding the Rule of Law
STRATERGY
We might summarise the key principles of the Rule of Law today as follows:
- Executive acts requires legal justification (Entick 1765)
- Laws must be clear and not retrospective (Burmah Oil 1965)
- The granting of discretionary power to the Executive requires judicial control (Liversidge 1942 versus A and Others 2004)
- The law applies equally to all (M v Home Office 1993)
