The Rule Of Law Flashcards
Concept of rule of law
Safeguard against a dictatorship, supports democracy. Gov and it’s official are accountable under law. Honoré an academic lawyer points our rule of law exists when a gov power are limited by law and citizens have a core of rights that the gov are bound to uphold.
What are the principles of the concept of law
No person shall be sanctioned except in accordance with the law; both crim and civil cases
Equality before the law
Must be fairness and clarity of law
Dicey’s three elements
Absence of arbitrary power of the state: power must be controlled by law and the law must set limits on what they can and can’t do. Avoid the state having wide discretionary power.
Everyone must be equal: no one is above the law (sans the monarch) no matter how rich or powerful this person is
Law is supreme: parliament has finally say. Nothing above parliament and nothing can override it.
Issues with Diceys elements
Conflicts parliamentary supremacy (arbitrary power)
Laws can be challenged by judicial review
Equality before the law refers to formal equality, taking cases to court costs a lot of ££££
Other views on rule of law: Von Hayek
Von Hayek: academic lawyer, agreed key component of rule of law is abscence of any arbitrary power on part of state but though interventionist state made it weaker (eu law). This is bc of actions of the state were authorised via legislation, any act in accordance to this was lawful. He pointed out modern state is directly involved in regulating economic activity. Therefore contradicts rule of law
Views on the rule of law: Raz
Recognised the rule of law was a way of controlling discretion instead of preventing it entirely. Saw rule of law as of negative value acting to minimise danger of use of discretionary power in arbitrary way. He thought the key point was that the law must be capable of guiding an individuals behaviour
Give some principles from Raz that come from a wider idea
There should be clear rules and procedures for making laws
Independence of judiciary must be guaranteed
Principles of natural justice must be observed (open and fair hearing for all parties)
Courts should have power to rehired the way in which other principles are implemented
Give an example of changes in the twenty first century to support Raz and his principles
Constitutional reform act 2005 which recognised the rule of law and importance of the independence of the judiciary. It shows the importance attached to the rule of law.
Give examples of how the rule of law is applied to the legal system
Every defendant has right to a fair trial, a jury is seen as an important factor to protect this
No one can be imprisoned without a trial
Rule of law important in civil justice system: people need to be able to solve disputes effectively through this system by t being free of corruption and the system being impartial
Should be accessible and affordable, although open to debate as major cuts to public funding of cases have been implemented in the past 20 years where the cost of taking them to court has increased.
Rule of law and substantive law
Substantive: law in different areas of law, ie of tort or of human rights . It recognised people have key rights and that laws are not oppressive.
Crime and substantive law
Aimed at protecting people, ie murder or man slaughter, property, ie theft or burglary. Preventing disruptive behaviour and protecting public order. Regulatory offence aimed at issues such as pollution prevention.
For all offences law has to be clear and it must be proved they did the offence.
How do penalties work in law
They have a stated max penalty and the court cannot go above this. In most cases, the penalty will be far below.
How are torts aimed at protecting people
Aimed to protect people and property and compensation for damage caused by law breached. Person affected by tort always clams, ie if a person is knocked down by a car the person knocked claims. Issue is funding is scarce and it’s expensive
Human rights and substantive law
All rights must be applied without discrimination. European convention on human rights sets out the right to liberty. Should only be taken away with accordance with the law ie prison if you kill someone. Convention states there is a right to a fair trial. The rule of law is central to any legal claim.
