BCL Law Notes Constitutional Theory Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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4. The Rule of Law
Formulations
Broadest – people should be ruled by law; law should be capable of ruling people (guiding their behaviour by being clear & prospective)
Narrower – government should be subject to law (harder to achieve)
BUT if government is by definition government authorised by law – then this becomes tautology?
Thick v thin conceptions – formal requirements as to institutions (prospectivity, independence of judiciary, etc) v substantive requirements as to equality in substance of laws etc
‘thin’ conception (law governs all in a way that is predictable & allows citizens to conduct their affairs)
complemented by ‘thicker’ conception requiring certain procedural rights – no good having proper norms if not properly administered / adjudicated
Stems from features of legal order
Comprehensiveness; purported supremacy
Definition, specificity, clarity – and therefore predictability
Goldsworthy —Legal principle or political ideal?
Legal principle – judicially enforceable – invoked in Canada as basis for judicial review of legislation
Ironically, using rule of law as (bare) basis for invalidating legislation would breach requirement for certainty & predictability in rule of law
Political aspiration – constitutional insofar as conventions require compliance
Does not bind legislatures any more than other political principles (like equality or other conventions)
Distinct from question whether rule of law compatible with political sovereignty
And even if it is, whether democracy is more important than the rule of law
Rule of law can exist in systems without democracy – would the case for subjugation of legislative power to bills of rights be stronger?
Even if they are, does not follow that democracy ‘trumps’ – just that countervailing factor
History
Plato — philosopher king & benevolent monarchy, but still hoped that law would have authority in itself
“where the law is subject to some other authority and has none of its won, the collapse of the state is not far off” <> “if law is the master of the government and the government its slave, then the situation is full of promise”
Aristotle — first pure advocate of rule of law
Deuteronomy imposed some limits on Jewish kings — although never implemented or enforced
Raz — Thin conception
Raz — Fallacies re rule of law
It does not have overriding importance
For good legal system has to be complemented by democracy, justice, equality, human rights, etc
Rule of law does not equate to rule of good law — otherwise becomes a truism
System can comply with the rule of law and make many bad laws
Waldron —Rule-book conception — texts & precedents of law applied with certainty & without fear or favour
One of a cluster of ideals constituting political morality — together with human rights, democracy, and free markets
Rule of law is fundamental
Democracy cannot exist except with procedures of election secured by law
Markets require law governing property & contract
UDHR preamble states essential that must be protected by rule of law
Rule of law is older — since Aristotle, well before human rights & democracy fully developed
Rule of law required but not sufficient for good government
Cf Hayek – uses rule of law to call for good laws – in particular to prohibit government interference with economy – rule of law should not be mobilised to particular political agenda
Definition of ‘good’ necessarily differs from person to person
Pursuit of any particular social goal cannot be inconsistent with rule of law
FA Hayek’s definition – government bound by rules fixed & announced beforehand, which are sufficiently certain to allow individuals to plan their affairs
Says nothing about how law ought to be made – democratic structures, etc
Historical origins – rule of law came about well before democracy
Brings in judicial review through ultra vires philosophy, requires independence of the courts
Really just an exercise in taxonomy – but gives the principle some meaning
Extremely unjust laws that are prospective, promulgated, clear and stable are not objectionable on rule of law grounds
Rule of law is necessary but not sufficient for justice
Thin justification does not require any particular substantive limitation on legislative power – justifies only very limited, procedural review of legislation
Impractical – requirements for publicity of laws, stability, clarity, cannot be absolute (but does this negate possibility of review?)
Eg Ashworth / France – defence of ignorance of law if reasonable
Prospectivity – justified in certain circs & should leave to parliament to decide
Obviously shouldn’t have judicial mandate to invalidate on that ground alone –
eg war crimes legislation is retrospective but justified
British Parliament 1965 reversing right to compensation retrospectively
Cf. Gaudron J in Tampa special leave application
Changing common law in criminal cases – has retrospective effect (eg Issa & Elias) – ‘fairy-tale’ of declaratory theory of common law
From political perspective – desirable in the pursuit of the aspiration that have constitutional requirement to put retrospective legislation to plebiscite (if parliament derives sovereignty from the people)
“Functional” conception — variant of thin view
Rule of law <> Rule of man
IE rule of law strongest when men have least discretion
Still says nothing about virtue of laws — just encourages certainty at expense of flexibility
As a negative value
Rule of law essentially a negative value – minimises dangers inherent in the existence of law
Conformity does not cause good but avoids evil
No necessary connection between law & morality
TRS Allan — Response to Raz’s ‘negative value’ conception
Reduces to requirement that society be governed by ‘law’ – bare conception that adds nothing to requirement for ‘law’ of a kind
BUT that is true, and it has follow-on consequences...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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