Rule of Law

Question 1

Bare principle of legality

Answer 1

• those who have limited legal authority should not step out of it, and should be kept within the boundaries of that authority.

Question 2

A formal conception

Answer 2

• addresses the manner in which the law was promulgated; the clarity of the ensuing norm; and the temporal dimension of the enacted norm.
• Raz, Unger, Dicey

Question 3

A formal conception - Raz

Answer 3

• a substantive rule of law that endorses moral laws necessarily become a social philosophy.
• the rule of law would lose any worth in its independence from the philosophy of law.
• for the law to be rule, the law must be obeyed.

Question 4

A formal conception - in the courts

Answer 4

Access to courts (Raz)

• Anisminic: the formal conception of the rule of law was used as an interpretive principle to stretch the interpretation of the ouster clause and read in the word “real”.
• Witham: the Henry 8th power to set fees under the Supreme Court Act 1981 was “impliedly limited by the common law right to access to courts”

        Supremacy of regular law (Dicey)

• Entick v Carrington: the minister could not grant a search warrant without statutory or common law authority.

        Equal application of the law (Dicey)

• M v Home Office: HS breached a court order and deported an asylum seeker - liable for ordinary citizens would have been in contempt.

Question 5

Rule of law - what?

Answer 5

Dicey’s three meaning of the rule of law:

• supremacy of regular law as opposed to… arbitrary power
• equality before the law
• the result of judicial recognition

Fuller: “the inner morality of the law”.

Edward McWhinney: “a historically received notion; distillation fo English common law legal history from great constitutional battles”

Question 6

Rule of law - critiques of Dicey

Answer 6

Dicey 1 - Dicey underestimated the existence of discretionary power, which is a necessary and legitimate consequence of governmental expansion. Modern scholars (eg. Davis) critiques this as “absurd”.

Dicey 2 - Dicey’s misunderstanding of the droit administratif.

Dicey 3 - considerable confusion: not that the rule of law demanded adherence to certain specific substantive rights, but that common law technique to protect rights is better (as opposed to continental)

Question 7

A substantive conception

Answer 7

• seeks to go beyond the formal conception, accepting the rule of law as having the attributes above, but taking the doctrine further.
• the concept is used as a foundation for certain substantive rights used to distinguish between “good laws” and “bad laws”.

Question 8

A substantive conception - Allan

Answer 8

• formal conceptions are themselves based upon substantive conceptions (moral autonomy and respect for the individual). It is unrealistic to preserve such a dichotomy between the two.
• in normative terms, adjudication involves the application of principles as well as rules.
• how the courts reason (Raz’s distinction between regulated and unregulated cases)

Question 9

A substantive conception - Laws

Answer 9

• certainty
• fairness
• freedom

Question 10

A substantive conception - in the courts

Answer 10

• Simms: blanket ban on journalist visits without authorisation was ultra vires (right to free speech).
• Daly: routinely searches on legal correspondence was ultra vires (right to confidential legal correspondence)
• Lewis v A-G Jamaica: even prerogative must conform to requirements for fair procedure.
• Leech: it was ultra vires to read a prisoner’s legal correspondence (statute interpreted narrowly so as not to infringe upon common law right to legal professional privilege).