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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 a. Factual & legal (Barber)
i. Factual observation of UK - how power is actually exercised ii. 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 b. 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 a. "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."
i. 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 b. 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 a. 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 b. 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 a. Concerned with i. How was the law promulgated ii. Clarity of the ensuing norm (sufficiently clear to guide a person's conduct?) iii. Temporal dimension of the enacted norm
iv. Does not pass judgement on the actual law itself.
b. Raz -
i. 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 ii. However, RoL is but one virtue, and can be sacrificed for other ends c. Dicey -
i. Formalistic - laws must be passed in the ordinary legal manner and guilt should only be established before the ordinary courts of the land ii. But also a little substantive - law must be free from arbitrary immunities (Cornerhouse)
d. Craig -
i. 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 ii. Rule of law in strong sense thrives only alongside values of human dignity, liberty and democracy.
2. Substantive conception of the rule of law a. Concerned with i. Taking the doctrine further than that of the formal conception ii. Believes that "certain substantive rights are said to be based on, or derived from, the rule of law."
iii. 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 iv. 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."
b. Dworkin i. Central thesis : courts should be deciding legal questions based on the best theory of justice ii. RoL requires state's coercive acts be justified before the courts, broadly similar to Allan
1. When coercion exists over a person, law should check that this coercion is justified, grounded in
Dworkin's account of law
2. Dworkin's account is one that requires justification of power in society, and if it can't be justified, prevents the power from being exerted iii. Citizens have moral rights and duties with respect to one another, and political rights against the state as a whole - these moral and political rights should be recognized in positive law. RoL on this conception is the ideal of rule by an accurate public conception of individual rights. It requires, as part of the ideal of law, that RoL captures and enforce moral rights iv. Observations -
1. Formal rule of law values would not be separate but part of his legal theory
2. Substantive view of ROL requires the particular conception and articulation of the principles of liberty, equality etc c. Allan i. Claims that the core of RoL is a demand that the state be able to justify its treatment of individuals by reference to the common good
1. Common good includes "basic liberties of thought,
speech, conscience and association" coupled with broader considerations of equal dignity, fair treatment, and respect for citizens.
ii. Allan felt that RoL is a legal principle; a substantive legal rule which is/should be applied by courts and to be understood through the examination of case law iii. Formal conceptions of the ROL are based on substantive foundations - moral autonomy and the respect for the individual (Raz) therefore it is not realistic to separate the substantive foundations from the ROL
i. Prospective law
1. Lauri - 'fundamental rule of English law that no statute shall be construed so s to have a retrospective operation unless its language is such as plainly to require such a construction"
ii. Open - made known by publication
1. Lord Diplock in Fothergill "fundamental requisite of the rule of law that the law be made known"
3. Is the distinction a misleading one?
a. Even supposedly formal conceptions contain substantive elements -
i. Craig says Dicey/Raz's account is a purely formal RoL
but it has implications on what law should do. Actions that impede access to court by raising court fees are contrary to RoL, arbitrary immunities contravene RoL
ii. Raz's conception relies ultimately on the respect for individual autonomy and dignity, which is not a moral neutral judgment b. Hence, there is no fundamental principled distinction between formal and substantive conceptions - it is a matter of degree (Barber)
i. Formal conception involves much less contestable normative claims over which there is minimal disagreement, while substantive conceptions tend to be much more contentious
4. Why 'formal' RoL is preferrable a. Strengths i. Formal conception, it is said, lays claim to a moral neutrality that may insulate it from a form of contentiousness that would erode its authority
1. Questions concerning the content and effect of the RoL — sit in relationship with one another
2. Extent of the effect of a RoL value may turn in part upon its fundamentality, those values that are regarded as uncontentious and important b.
5. Link a.
being more likely to command the very boldest judicial protection (Elliott)
a. In contrast, if RoL becomes laden with substantive, and inevitably controversial, elements, judges will be much less likely to protect it, for fear of assuming a legislative role in adjudicating on debates that ought to be democratically decided
3. Hence, a formal conception makes it more likely that RoL would be given weight, and protected, while a substantive conception is in effect meaningless a. Given that there is normative value in even a thin conception of RoL, this is valuable ii. Conception of the ROL in the substantive way deprives it of any function aside from that associated with rights
Criticisms of thin conception i. Would allow 'chronic lawless violence' inflicted on some citizens against others
1. However, this is perhaps outside the remit of
RoL - must depend on political forces restraining parliament's will ii. Allan - Reduces to requirement that society be governed by 'law' - a bare conception that adds nothing to requirement for 'law' of a kind
1. Not true - predictability is a virtue in itself between content and form
If RoL is a mere political philosophy that seeks to restrain the behaviour of parliament and the executive, and not legally enforceable, then perhaps a richer conception of RoL may not be implausible
However, if, as Allan argues and Lord Hope alludes to in
Jackson, it may be a substantive legal rule, then only the formal conception is perhaps palatable
Why is RoL important?
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