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The Rule Of Law Notes

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The Rule of Law The Rule of Law

Constitutional principle that power should be exercised in a manner consistent with the law and that the law should show certain characteristics.

Theorists argue over what exactly the rule of law is, as well its importance constitutionally. Some identify it as a cornerstone of the constitution, while others doubt that, Sklar referring to it as 'ruling class chatter'.

Key elements of the rules of law: o No one is above the law (Denning: be you ever so high, the law is above you). o Action is justifiable only by reference to legal power, not who they are. o Laws should be transparent and certain; power should not be exercised in an arbitrary manner o Everyone is presumed innocent until proven guilty o The judiciary should be strong and independent, as well as the legal profession. Conceptions of the rule of law:

What the rule of law is made up of is contested: o Substantive conception - the actual content of the law is encompassed in the rule of law. 'An unjust law is no law at all'. Based on arguments from human dignity so supports ideas like human rights etc. o Formalist conception - laws are clear, certain, publically accessible, not retrospective, independent courts etc. But the content of the law can be anything - unconcerned with morality: 'like a sharp knife'. o Legality conception - all that is required to adhere to rule of law is that the law is passed in the procedurally correct way.


The importance of the rule of law is also disputed: o Informs political debate but is of no legal relevance. o Interpretative principle - courts try to interpret laws in accordance with rule of law. o Validity principle - a law that does not adhere to the rule of law is invalid.

Rule of law theorists:

Dicey - saw three elements to the rule of law: o There can be no legal punishment for any breach of law other than that presented before the ordinary courts of the land.

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