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What is the rule of law?
It is one of the doctrines that we have that underpins the UK constitution.
What are Dicey’s three main aspects of the rule of law?
- There can be no punishment other than for a breach of established law
- Nobody is above the law, everyone is subject to the same laws (equality)
- The judiciary propound (promote) and protect the constitutional rules through the common law
This in his opinion resulted in a democratic state.
What did dicey mean in the first aspect of the rule of law? There can be no punishment, other than for a breach of established law?
That you have to be able to point to the law that has in fact been breached, otherwise it will lead to arbitrary use. The only way to protect against it is for laws to be clear and precise so we know what they are.
What did dicey mean in his second aspect of the rule of law? Nobody is above the law, everyone is subject to the same laws?
Everyone, no matter who you are (Prime Minister, police officers, ordinary public) should all be subject to the same laws. Also he was against having different courts for different types of people, no preferential treatment just because of your job title for instance.
What did dicey mean in his third aspect of the rule of law? The judiciary propound and protect the constitutional rules through the common law?
He means the importance of the courts in the absence of a written constitution and they have a special status.
What were sir Ivor Jennings criticisms of Dicey’s theory?
- he said his theory was over flavoured by his personal political views - minimal government with a minimal state that didn’t interfere too much.
- he also said Dicey’s limbs of the rules of law were inaccurate. Dicey said discretionary power was no good and we shouldn’t have it but Jennings said it does exist and we need it. In Dicey’s time it even existed e.g. If someone was convicted of manslaughter they could either be released immediately or imprisoned for life. Also at war the government can take property without compensation to the owner (wide discretionary powers of the state).
- he also criticised Dicey’s opinion on equality before the law, saying there are different laws for different classes such as landlord and tenant.
What is formal theory?
It is on about the form the law should take I.e. Clear, precise, should not be retrospective.
What is substantive theory?
It deals with the substance of the law, meaning that for the rule of law to be meaningful it has to talk about the content of the law too.
What was Raz’s opinion on the doctrine of the rule of law?
His was a formal one.
What principles did Raz say the rule of law had?
8 as follows:
- all laws should apply from the future onwards
- that laws should be relatively stable
- rules for creating laws should be clear
- for the rule of law to be guaranteed we need an independent judiciary
- the principles of natural justice must be observed
- the courts should have review powers over the implementation of other principles
- the courts should be easily accessible
- crime prevention agencies should not be able to abuse the law by using their discretion
What was Dworkin’s opinion on the doctrine of the rule of law?
Substantive. He said Raz’s theory was more a rule book and you just had to tick the particular rules to comply with the rule of law. It doesn’t say the content of the rules that should be in the rule book.
What does Bingham say are the three reasons why looking at the rule of law is important and why we need to do it?
- the number of times that the phrase is adopted and used by judges like himself in cases, that he presided over. He said important decisions are made by the high court, the Supreme Court, the House of Lords as it used to be, using the rule of law. All around the world the courts adopt and justify decisions and justify interference with decisions based upon the rule of law. So it has value, it has worth and we need to look at it.
- the phrase is embedded into international legal documents, so if you look at charters from the United Nations from the council of Europe, from other kind of institutions around the world, they all mention the rule of law and the importance of it.
- it has been expressly referred to in a UK statute. If you have a look at s1 of the constitution reform act 2005, it specifically mentions the rule of law within it.
What are Bingham’s 8 principles to his rule of law?
- The law must be accessible, clear and predictable.
- Questions of legal right and reliability should be resolved by application of the law and not the exercise of discretion.
- Laws of the land should apply equally to all.
- Ministers must exercise the powers conferred on them in good faith without exceeding them.
- The law must afford adequate protection of fundamental human rights.
- Means must be provided for resolving civil disputes which the parties themselves are unable to resolve.
- Adjudication proceedings should be fair.
- The state must comply with international law.
What is the definition of the rule of law?
There is no universal definition that everyone agrees on, they all have different ideas.
When does the rule of law date back to?
Aristotle.
