Rule of Law

Philosophers and their views on the Rule of Law

 

  •      Aristotle: “Even guardians of the laws are obeying the laws. All government must take under the law”.
  •      Joseph Raz: “The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree… it is… just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality…human rights”.

 

Parliament and the Rule of Law

 

  •    Parliament can adopt legislation establishing of reinforcing elements of the rule of law.
  •      In light of parliamentary sovereignty, it is possible for Parliament to adopt legislation contrary to the rule of law.

 

The Magna Carta 1215

 

  •      The Magna Carta 1215 states that no one is above the law.

 

The Constitutional Reform Act 2005

 

  •      However, s.1 of the Constitutional Reform Act does not adversely affect:

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor’s existing constitutional role in relation to that principle.

 

 

Broader theories of the rule of law

 

The three views concerning the rule of law:

 

  • Principle of legality
  • Formal conception
  • Substantive conception

 

Bare Principle of Legality

 

  •      This simply means that if something is to be regarded as a law, it must be enacted in whatever way the relevant legal system prescribes.

 

The Formal Conception and Joseph Raz

 

  • Joseph Raz in his article ‘the authority of law’ (1977) stated that the primary function of the rule of law is to ensure that ‘the law should conform to standards designed to enable it effectively to guide action’.

If the law has these characteristics, people will know where they stand’.

  • However, Raz makes a negative argument: “if one takes the rule of law further, it would transform into nothing more than a contestable political theory”.

 

The Substantive Conception – Trevor Allan and Ronald Dworkin

 

  •      Substantive conception followers argue that rule of law amounts to the rule of goodlaw.

 

A.V. Dicey and the Rule of Law

           

  •     Albert Venn Dicey’s first meaning of the rule of law is that there should be no punishment without the law.

 

  •     Dicey’s second meaning of the rule of law is that there is “equality before the law and equal subjection of all classes to the law administered by the law”.

 

  •    Dicey’s third meaning of the rule of law is that we have a constitution because of our rights.

 

How do courts protect the rule of law?

 

  •      To protect the rule of law, courts will strike down government action that is inconsistent with the rule of law.

 

Relevant Case Law:

 

Entick v Carrington (1765) EWHC KB J98

 

R (Jackson) v Attorney General (2005) UKHL 56

 

R v Secretary of State for the Home Department ex parte Anufrijeva (2003) WLR 252

 

R (on the application of Bourgass and another) (Appellants) v Secretary for State for Justice (Respondent) (2015) UKSC 54

 

R (Evans) & Anor v Attorney General (2015) UKSC 21

 

R v Lord Chancellor, ex parte Witham (1998) QB 575

 

M v Home office [1994] 1 AC 377