Rule Of Law - Constitutional Law

Rule of Law (RoL)

What type of thing is it?

Raz – nature of law

Dicey – principle of constitution

Allan – rule found within legal order

Craig – divide should be drawn between formal and substantive conceptions of RoL – but the people Craig says are on the formal side are also talking about content of law

**Better divide perhaps found in different understandings of the point of law itself

Diceyan RoL – Three requirements

1. ‘The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excluded the existence of arbitrariness, of prerogative, or even a wide discretionary authority on the part of the government.... A man can be punished for a breach of law, but he can be punished for nothing else

   1. Factual & legal (Barber)

      1. Factual observation of UK – how power is actually exercised

      2. Law should be expressed such that people can in advance know whether they are acting in contravention of the law – legal side; how law expresses its obligations it imposes on people

   2. In England “wherever there is discretion there is room for arbitrariness…government’s discretionary authority must mean insecurity for legal freedom on the part of its subjects.”

2. “Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts” – Everyone, including state officials, is bound by ordinary law and subject to ordinary courts

   1. “Every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.”

      1. This is blatantly false – different individuals occupy fundamentally unequal positions in law – different law applies to tenants as landlords, employers as employees, state officials as citizens. Jennings – no two citizens are entirely equal

   2. Barber – better interpreted to mean no arbitrary immunities built into the law – everyone bound

3. [A conclusion] These two principles structure the common law and protect our liberty

   1. Residual liberty – if the law doesn’t tell you that you can’t, you can act – baseline presumption of liberty – free to do what you want unless law tells you that you can’t act in this way

   2. RoL sets the basis for discussions of liberty

To what extent does case law in fact track Diceyan RoL?

Yes – three prominent cases.

• Entick v Carrington – Entick wrote pamphlets criticizing the government, Carrington is a state official, ordered by SoS to seize books and papers to investigate sedition. Entick sues for trespass of property – courts held for Entick – Carrington must have statute/common law right to do so

  • Mirrors Dicey’s RoL – unless law recognizes the state possess a particular power, state can’t act in a way citizens can’t act – requires legal right to inflict that punishment

• Case of proclamations – King sought to issue laws, and courts said king only has power that law grants him – unable to inflict punishment unless he has the discrete legal right to inflict that punishment

• Beatty v Gillbanks – Salvation army took it upon itself to march against drunkenness and gambling, another organization called Skeleton Army marching in favour of drunkenness and gambling, and beat up salvation army – police arrests salvation army. Court says they arrested the wrong people – you can’t punish someone undertaking a lawful act because someone else might act unlawfully

  • Dicey would say skeleton army is threatening RoL

However, there are exceptions –

Public Order Act 1986

• S.11 – requirement to give police advanced notice of a procession

• S.12 – power of police to impose limits on the procession if it may result in serious public disorder, serious damage to property or disruption to community life

Reilly, Lumba, Cornerhouse

But it must be noted that these are outliers – in most instances, the law is clear and unambiguous, and courts determine punishment only where there is law. Should not be blindsided by the focus on contentious cases

Formal v Substantive conceptions of RoL

1. ‘Formal’ conceptions of the rule of law

   1. Concerned with

      1. How was the law promulgated

      2. Clarity of the ensuing norm (sufficiently clear to guide a person’s conduct?)

      3. Temporal dimension of the enacted norm (prospective/retrospective)

      4. Does not pass judgement on the actual law itself.

   2. Raz –

      1. Rule of Law should be a formalistic concept because if it is taken to include the necessity for good laws it will have no other function

      2. However, RoL is but one virtue, and can be sacrificed for other ends

   3. Dicey –

      1. Formalistic – laws must be passed in the ordinary legal manner and guilt should only be established before the ordinary courts of the land

      2. But also a little substantive – law must be free from arbitrary immunities (Cornerhouse)

   4. Craig –

      1. The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts

      2. Rule of law in strong sense thrives only alongside values of human dignity, liberty and democracy.

2. Substantive conception of the rule of law

   1. Concerned with

      1. Taking the doctrine further than that of the formal conception

      2. Believes that “certain substantive rights are said to be based on, or derived from, the rule of law.”

      3. It is used as a foundation for these rights, which are then used to distinguish between ‘good laws’ which comply with the rights and ‘bad laws’ which does not

      4. Lord Styen in Pierson: “P does not legislate in a vacuum. P legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption.”

   2. Dworkin

      1. Central thesis : courts should be deciding legal questions based on the best theory of justice

      2. RoL requires state’s coercive acts be justified before the courts, broadly similar to Allan

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