Rule of Law
- Created by: Launston
- Created on: 11-05-14 12:14
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- Rule of Law
- Definition
- List of essential characteristics relating to law and legal process which exist in a good constitutional system
- Laws should apply equally to all, adequate protection of fundamental rights
- List of essential characteristics relating to law and legal process which exist in a good constitutional system
- Content free or content rich
- Content free - Joseph Raz - should be about procedures
- Laws prospective, open and clear, stable, natural justice served, review powers, accessible
- Rule of Law designed to minimise harm to freedom in dignity which the Law may breach
- It is possible to say an evil legal system could adhere to the rule of law
- Formal equality matters and not social or economic equality
- It is possible to say an evil legal system could adhere to the rule of law
- Rule of Law designed to minimise harm to freedom in dignity which the Law may breach
- Laws prospective, open and clear, stable, natural justice served, review powers, accessible
- Content rich - Dworkin
- Rule book conception - act in accordance with rules no matter what they are
- Rights conception - Citizens have moral rights against each other and the state
- Three dimensions of failure of rights conception - state fails in scope of right, decline to enforce rights against self, fail in accuracy of rights
- A good system will have a mixture of both rule book and rights conception
- Three dimensions of failure of rights conception - state fails in scope of right, decline to enforce rights against self, fail in accuracy of rights
- Rights conception - Citizens have moral rights against each other and the state
- Rule book conception - act in accordance with rules no matter what they are
- Content free - Joseph Raz - should be about procedures
- Dicey and critics
- No man punishable unless he breaches law, no man is above the law
- Thinks constitution just concerned with individual rights
- Discretionary powers will make socially progressive goals
- Thinks constitution just concerned with individual rights
- No man punishable unless he breaches law, no man is above the law
- Sceptical Views
- Rule of law should not be extended beyond ensuring criminals are punished and powers are not overstepped
- Protection of the rule of law
- Judiciary
- Common law rights and freedoms
- Judicial review: illegality, irrationality and impropriety
- Rights flow from decisions of the court - right to life, fair hearing
- Judicial review: illegality, irrationality and impropriety
- Tort law
- People are free to act unless their actions interfere with other people's rights
- Entick v Carrington - right to secure property protected from trespass
- Problem is if there is no cause of action in tort the right will not be protected - Malone v Met Police
- Entick v Carrington - right to secure property protected from trespass
- People are free to act unless their actions interfere with other people's rights
- Criticisms of common law
- Unable to deal with situations where Act abolishes right previously recognised by court
- Can only provide protection in certain circumstances - in Entick only trespass made it unlawful
- Common law evolved to protect individuals in a liberal economic system
- Legal rights rather than actual rights (parties have freedom to contract but this doesn't stop wage slavery)
- Erratic nature of judgments - Liversidge v Anderson - judges typically conservative
- Common law evolved to protect individuals in a liberal economic system
- Can only provide protection in certain circumstances - in Entick only trespass made it unlawful
- Unable to deal with situations where Act abolishes right previously recognised by court
- Statutory Interpretation
- The principle of legality - examines when PA claims to have a right conferred by statute to interfere with common law right
- Pierson
- The principle of legality - examines when PA claims to have a right conferred by statute to interfere with common law right
- Common law rights and freedoms
- Parliament
- Parliamentary Supremacy means Parliament has the last say on the validity of provisions
- Procedures in place to ensure Acts comply with the rule of law
- Courts role limited when Parliament does enact legislation which is not rule of law compliant
- R v Davis
- Courts role limited when Parliament does enact legislation which is not rule of law compliant
- Procedures in place to ensure Acts comply with the rule of law
- Parliamentary Supremacy means Parliament has the last say on the validity of provisions
- Government: Lord Chancellor
- Special responsibility for ensuring compliance with rule of law principles
- Post removed by Tony Blair
- Lawyer better at protecting rule of law?
- In government, the LC ensured the cabinet took action in accordance with law
- Why was Lord Irvine replaced?
- Disguised as upholding separation of powers
- Lawyer better at protecting rule of law?
- Statutory reference to the rule of law
- Constitutional Reform Bill should reference rule of law
- The Act does not adversely affect - the existing principle of the rule of law or the LC's existing role in relation to the principle
- Continues with existing standard and does not infringe upon chancellor's duty
- Select committee's definition
- Government must be able to point to some basis for its actions that is regarded as valid by the relevant legal system
- Legal rules should be capable of guiding one's conduct - variety of criteria
- Judiciary uphold the rule of law
- Legal rules should be capable of guiding one's conduct - variety of criteria
- Government must be able to point to some basis for its actions that is regarded as valid by the relevant legal system
- The Act does not adversely affect - the existing principle of the rule of law or the LC's existing role in relation to the principle
- Constitutional Reform Bill should reference rule of law
- Post removed by Tony Blair
- Special responsibility for ensuring compliance with rule of law principles
- Judiciary
- Definition
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