RULE OF LAW Flashcards
WHAT IT IS
- Constitutional Reform Act 2005 S1 provisions do not detrimentally impact rule of law but doesn’t specify what RoL is
- is a guiding principle with inherent characteristics
- political principle
- government by law (governing by law)
- RoL forms basis of UK constitution
- RoL necessary for democratic governance but democracy is not a necessary component
DEFINITION
- basically states that power can not be exercised unless it follows procedure, principles and constraints in the law
- any citizen can find redress including officers of the state if they have breached the law
- not enough to declare law is supreme
- constitution must provide for the conditions to make RoL such as separation of powers especially judicial independence from government
- freedoms rooted in ordinary law and not on constitution guarantees
DEFINITION 2
- TRS Allan “corpus of basic principles and values which together lend some stability and coherence to the legal order”
- Dicey “every official from PM down is under the same responsibility for every act done without legal justification as any other private and unofficial person”
- basically this principle states the law should be legitimate and everyone should obey and can be enforced against anyone
HISTORY OF RULE OF LAW
-Magna Carta 1215 states even monarch not above law
- Petition of Right 1628 demanded monarch adhere to manga carta promises including : no punishment without breach of law, the right to know charge against you, right to a fair trial to determine guilt
- Sir Edward Coke (prohibitions del Roy 1607) monarch not to act as judge only legally aware judges reach decisions
- habeas corpus act 1679 produced before court and strengthen common law safeguarding liberty and preventing unlawful or arbitrary imprisonment
- Bill of Rights 1689 procedure for law making (only with parliamentary consent ) judicial independence from government and basic principles of RoL
~ defined limits to royal power and gives supremacy to parliament)
~ fair trial before courts
~ crown not immune
~ no punishment without conviction
- sets out the procedures which law must be made and applied and basic fundamental principles that determine the operation of the RoL
TWO SCHOOLS OF THOUGHT
- Procedural (thin) RoL
- Substantive (thick) RoL
PROCEDURAL (THIN) RULE OF LAW
- this considers that proper procedure is essential for RoL to operate
- law should be made in a prescribed way published prospective applicable to all
- supported by dicey Jennings Raz
- thin theory: basic level of legal system support for law as supreme and all are subject to and equal before it
- thin theorists favour morality of government
PROCEDURAL (THIN) RULE OF LAW 2
- Dicey no one should be punished by the state without breach of law
- no one is above the law
- rights and protections for people lie in ordinary law judged by ordinary courts
- acceptance of RoL as a constitutional principle requires a citizen before any action should know legal consequences that will flow from it
- difficult to respect law when behaviour that was legal is illegal next day
- Jennings critics Diceys insistence on certainty at expense of discretionary power. Discretion is a key feature of social justice following expansion of the state in 20th century
- Raz RoL should not be confused with democracy justice equality human rights or respect for persons or the dignity of man a non democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution lan nevertheless conform to the requirements of the rule of law
SUBSTANTIVE (THICK) RULE OF LAW
- a second school of thought considers that while proper procedure is an essential component the content of the law itself must reflect certain aspirational principles in order for it to truly operate
- thick theory includes all elements of thin theory but law must be virtuous include political social ideas such as democracy social morality or human rights support democracy
- theorists are laws, Woolf and sedley
- Woolf if parliament did the unthinkable then courts would have to act without precedent. There are even limits on parliamentary supremacy which is the courts inalienable responsibility to identify and uphold
SUBSTANTIVE (THICK) RULE OF LAW 2
- laws: thick theorist favouring morality of laws ie autonomy of the individual over morality of government
- other scholars have implied a number of other features which satisfy RoL
- TRS Allan adds to Diceys formal conception: law should promote the common good via principles of procedural fairness equality and proportionality
- Woolf and Bingham: RoL implies some form of basic minimum standards of human rights
OTHER INFO
- cases
- Brexit
- challenges
See PowerPoint
