The Rule Of Law Flashcards
Subheadings
1 introduce ROL
2 theories of ROL
3 the importance of ROL
4 application of the ROL in criminal law
5 application of ROL in tort law
6 conclude
Introduction
All people are subject to and accountable to the law that is fairly applied and enforced
The rule of law is a safeguard against dictatorship and it support democracy authority is distributed between different bodies no body can excessive power in a unchecked way
These principles mean that
No person shall be sanctioned except in accordance with the law
There is equality before the law
There must be fairness and clarity of the law
Theories of ROL
Professor dicey gives the best known explanation of the rule of law he sated that there are 3 main elements
1 an absence of a it’s power on the state
2 equality before the law
3 supremacy of ordinary law
an absence of a it’s power on the state
The states power must be controlled by the law the law must set limits on what the state can or cannot do in our legal system action of a decisions of government minister can be be challenged by judicial review von Hayek also agreed with dicey here
Every one must be equal before the law
No person must be above the law it it does not matter how rich or powerful a person the law must deal with the same way as everyone else however it is difficult as court actions and good representation is expensive
The law must be supreme
Today most laws are made through legislation as acts of parliament and delegated legislation although judicial decisions still create law through precedent
Joseph raz
In the authority if the law he argued the main functions of the ROL is to ensure that the law should confirm to standards designed to enable it effectively to guide action he stated the law should
- not have retrospective effect
- made by proper procedures
- Be relatively stable and not change frequently
What was raz view
That he ROL meant simply that citizens of a state should understand the laws and the consequence of their actions
Theories of the ROL AO3
P: a major problem with diceys view is that the the ROL conflicts with another fundamental pricinciple parliamentary sovereignty this is because an act of parliament can overrule any other law but a law cannot override any act of parliament
DP: so under the ROL we should not have arbitrary power of the state due to parliamentary sovereignty parliament has the right makes any law they wish and this could could grant arbitrary power to the state
WDP:furthermore status cannot be chalked by judicial review this contradicts raz view theory that the the court should have the power to review they way principles are implemented
Law making
The process by which the law is made must be open and fair in our legal system act of parliaments can only become a law if it is debated on between both houses House of Lords and House of Commons however the government will usually have the majority meaning that most votes will be in favour of the bill and get passed
Legal system
The rule of law is important in the civil justice system ordinary people need to be able to resolve their disputes effectively through the civil justice same this means the system must be free from corruption and not improperly influenced by public officials our system is trusted and recognised for being impartial eg criminal court have juries
The civil justice should be accessible and affordable in the uk we have funding through LAPSO 2012 which allows access to justice although the budget is finite
The importance of the ROL AO3
P: this point is open to debate as there has been major cuts to public funding of cases in the past 20 years and civil courts have increased
DP: so people who are financially unstable may not be able to afford to take their court to case
WDP: however there has been a increase of alternative ways of resolving civil disputes which are cheaper eg mediation
The application of the ROL in criminal law
May areas of criminal law are aimed at protecting people and their property we also have regulatory offences which protects us through driving offences and ensuring food is is fit for human consumption for every offence the law has to be clear and must be proven that the d committed the offence there are also maximum sentences so that the d is not treating unfairly
Case inglis
The application of the ROL in criminal law case
Inglis woman injected illegal heroine dose into son stating that it was assisted suicide she was charged with murder hr conviction showed equality
The application of the ROL in criminal law AO3
P: the decision in inglis was fair as it showed equality in the law
DP: if she wasn’t convicted of murder this would create loopholes in the law and would be deemed unfair
WDP: therefore upholding ROL as the law is certain and applied the same to everyone promoting consistency
