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Rule of Law _______________________________________________________
Rule of Law What is the rule of law?
? Harden & Lewis: a "cluster of credos" which defend the "collective beliefs of the people" Constitutional Reform Act 2005: "nothing in this act shall detract from the existing constitutional principle of the rule of law" Diceyan rule of law:??
Legality Certainty Equality Access to justice
Procedural rule of law is designed to ensure that "men were ruled by law and not by caprice" - it is a tool against arbitrariness Prerogative power as the "residue...of arbitrary authority"
? Hayek: sharing Dicey's resistance to big government, that green light political systems are an affront to the rule of law because discretion blurs certainty
? Nicola Lacey: the problem with applying the "legal paradigm" to administration (rules knowable in advance with due process) is that managerial discretion is automatically viewed as an affront to the rule of law Entick v Carrington King's messenger broke into C's home with orders from Lord Halifax, Sec of State - Wilkes (radical prevented from taking his seat in the HoC) sympathiser claimed for trespass Held: Lord Halifax had no authority in the form of statute or common law. The State may do nothing unless it is expressly authorised by law, whereas the individual may do anything unless it is expressly forbidden by law
? Camden CJ: "bound to show by way of justification, that some positive law has empowered or excused him"Merkur Island Shipping Corp per Lord Diplock - the law must have clarity
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