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Rule Of Law Notes

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THE RULE OF LAW

* The State must both enforce law within its own domain, and defend the nation from external enemies. Coercive powers can be used to oppress people as well as confer benefits upon them to achieve such aims.

1. DICEY'S VIEW

* Two features characterize the political institutions of England - the supremacy of Parliament, and the supremacy of law (which is the security given under the English Constitution to the rights of individuals looked at from various points of view).

1. The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power - excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government... a man may with us be punished for a breach of the law, but he can be punished for nothing else. a. Contrasts the rule of law with systems of government based on the exercise by those in authority of wide or arbitrary powers, such as detention without trial. In almost every Continental community the executive has far wider discretionary authority in the manner of arrest, temporary imprisonment etc. b. States that no person should be punishable except for a distinct breach of the law established in the ordinary manner before the ordinary courts of the land. c. Criticism: The meaning of the word arbitrary is ambiguous - does it mean procedurally arbitrary, as in law not passed in the proper legal manner, or substantively arbitrary, as in law which was passed in the proper manner but is unclear or vague.

2. Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. a. No one was above the law - officials were under a duty to obey the same law as private citizens, there were no administrative courts to decide claims by citizens against state or its officials. Though a person may incur from his position as a public official legal liabilities from which other men are exempt, he does not escape thereby from the duties of the ordinary citizen. b. Dicey's view impeded the proper understanding of administrative law - today administrative courts protect the individual against unlawful acts by public bodies in many European countries. He was skeptical of continental legal systems, where e.g. in France, public law courts were divided from private law courts. He thought that public officials got off easier the evidence is on the contrary - often they were subjected to tougher laws. c. Criticism: Dicey's view of equality is very limited - it is only about equal access to the courts. It says nothing about equality of opportunity, or consistence of treatment before the courts.

3. The unwritten constitution in the UK could be said to be pervaded by the rule of law because rights to personal liberties or public meeting resulted from judicial decisions, whereas under many foreign constitutions these rights flow from the written constitutions. a. Individuals rights were not secured by guarantees set down in a formal document, but by ordinary remedies of private law available against those who unlawfully interfere with another's liberty. The rule of law involved a commitment to the protection and recognition of individuals rights. For us, the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals - the constitution is the result of the ordinary law of the land. b. Dicey believed that the common law gave better protection to citizens than a written constitution. Constitutions were often written one moment and ripped up the next, so were only worth the paper they were written on. However, we cannot share such a faith in common law today. Parliament may erode fundamental liberties. The belief that there is a value in the

formal definition of Human Rights led to the Human Rights Act 1998, and the creation of procedures for protecting those rights.

2.THE RULE OF LAW AND ITS IMPLICATIONS TODAY Three aspects of the rule of law

1. Government according to the Rule of Law (Craig; The Rule of Law and Legal Authorities) a. A view shared by everyone - Government must be able to point to some authority for its action to be regarded as legally valid. In the UK this involved the government accepting that it must have a valid foundation, whether that be statute, common law, or prerogative power. It must come from properly authorized people, in the proper manner. This view holds that the rule of law serves as a buttress for democracy, since new powers of government can only be conferred by Parliament. b. Criticism: This view says nothing of the content or nature of government action - just that it has a legal basis. In a system in which Parliament is supreme, and so long as the Cabinet has a majority in the Commons, legal authority may not be difficult for the government to obtain.

2. The Rule of Law and Guiding Conduct: a. This is in addition to 1, not instead of it. As 1 tells us nothing of content, and only so much of form, it is necessary, but not sufficient. b. Laws properly enacted should be capable of guiding conduct so that people can plan their lives secure in the legal consequences of their actions. c. Dicey is a proponent of this view - his first principle is formalistic because it only requires the laws under which people are condemned to be passed in the correct legal manner, and arbitrariness is formalistic because laws could be arbitrary either if they are passed not in the correct manner or are impossibly vague. His second principle is formalistic because it only concerns formal access to courts, not the nature of the rule that individuals find when they get there. The third principle is formalistic as well - it only states that rights are better protected under the common law. d. Raz is a proponent of this view: If the rule of law is the rule of good law, then to explain its nature is to propound a complete social philosophy, and the term lacks any function. He says that it must have these attributes i. Laws should be prospective not retrospective ii. Law should be relatively stable iii. Particular laws should be guided by and framed by more open, general and clear rules iv.Must be an independent judiciary v. Must be reasonable access to the courts vi. Discretion of law enforcement agencies shouldn't be allowed to undermine the purpose of the law. e. Criticisms: i. The Rule of Law, if seen in this sense, can be met with morally objectionable law, as Raz admits. ii. Not all democratic and liberal laws will satisfy the requirement of being relatively stable iii. It is only one virtue of a legal system, which can be sacrificed to obtain other virtues
- it has to be balanced against competing claims. iv.It (intentionally) says nothing of the content of laws as such. Raz accepts that the 'rule of law is compatible with gross violations of human rights' but also argued that 'deliberate disregard for the rule of law violates human dignity.' The Rule of Law can only thrive alongside values of human dignity, liberty and democracy. v. Response: If law should be just and morally sound, then a problem arises. The concept of the Rule of Law doesn't have a valuable independent function - if the Rule of Law

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