RULE OF LAW Flashcards
Two main ways R of L has legal effect
(I) influences how courts interpret legislation
(II) defines the validity of govt action/legislation
Three conceptions of R of L?
(I) legality (bare principle)
(II) formal approach
(III) substantive approach
Define key principles of legality interpretation
Only a question of whether or not something is legal
Law must be made by authorised institution in the established way > an identifiable body of rules conforming to a certain method of creation
Is morally neutral, any law, regardless of content can be enacted as long as it is made by authorised body in the prescribed manner.
I.e. This is how apartheid was allowed to exist
What did Allan say in regards to formal approach?
‘Like a sharp knife, the rule of law is morally neutral, an efficient instrument for good purposes or wicked.’
Who is the leading writer on a formal approach?
Joseph Raz
When Raz said ‘law should conform to standards designed to enable it to effectively guide action’, what did he mean?
That law should not have a retroactive effect, nor should it change too often.
If law has these characteristics people know where they stand and can make informed decisions on their actions.
What stance does DICEY’S formal view take on discretionary powers?
‘Government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint would be contrary to R of L’
What stance does RAZ’S conception of the formal approach take on discretionary powers?
Existence of such powers does conform to rule of law, provided there is an adequate legal framework to govern their application. This makes them certain enough for them to be predictable and understandable.
What are the 2 arguments for a solely formal approach?
- Although a formal approach allows for discriminatory/’evil’ legal systems, legal certainty itself is based on respect for human dignity and autonomy
- Whilst holding these underlying principles ^ , taking it any further = nothing more than a contestable legal theory
Who said: ‘if the rule of law is rule of the good law, then to explain its nature is to propound a complete social philosophy’ ?
Joseph Raz
What is the main vehicle by which rule of law is articulated?
Judicial interpretation of legislation and judicial evaluation of legality of govt action
What is the general recognition of the formal approach?
Formal and procedural principles have a ‘settled, overarching quality’ - LAWS
WITHAM 1998 case facts
- Govt minister granted certain powers to enact secondary legislation
- C argued he had exceeded these powers by substantially increasing legal fees to access courts
- Held: court agreed with claimant, by exceeding his powers the minister had acted without legal authority = breach of legality
HIGHLIGHTS ENTICK 1765
Which case demonstrates limits of bare principle of legality?
MALONE 1979
MALONE 1979 case facts
- Govt had listened to C’s phone calls
- At the time there was no statutory protection of right to privacy
- Held: govt acted legally
- Demonstrates principle of legality doesn’t require positive legal authority if the other party’s legal rights aren’t effected
- Hard to define where the rule of law is
What are the four clear acceptances of the formal conception in English law?
1) Legal certainty
2) Laws shouldn’t have retroactive affect
3) Discretionary powers are accepted with appropriate certainty imposed
4) Requirement of independent courts
Which case demonstrates an endorsement of legal certainty?
ANUFRIJEVA 2003
‘A constitutional state must accord to individuals the right to know of a decision before their rights are affected’ - LORD STEYN
ANUFRIJEVA 2003 case facts
- Asylum seekers benefits were stopped, her entitlement to which would only cease after her claim was determined
- Govt said they were able to stop payments as they had rejected her claim
- BUT she hadn’t been told, so the govt had acted against principle of legal certainty = unlawful
Which case clearly recognised laws shouldn’t be retroactive?
PIERSON 1998
PIERSON 1998 case facts
- HS decided (on incorrect knowledge of circumstance) that C should spend at least 20 years in prison for double murder
- Normal sentence under the correct circumstance would be 15 years
- After discovering the actual facts, HS stood by original decision of 20 years
- HELD: unlawful ‘contrary to fundamental principle that a sentence lawfully passed should not retrospectively increase’
What does the case of LUMBA 2012 demonstrate?
- Discretionary powers must be legally made certain
- If govt pledges to exercise a given power in accordance with policy (i.e. Not to deport asylum seekers in certain circumstances) courts generally hold it unlawful not to do so
Which case endorses formal approach to discretionary powers?
LUMBA 2012
Which three principles demonstrate a more substantive approach in the courts?
- Right to a fair hearing
- Right to freedom of expression
- Right to confidential legal advice
Which case demonstrates courts accepting right to a fair hearing?
RIDGE V BALDWIN 1964
