The rule of law

the rule of law

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In 1885, the first edition of A.V. Dicey's An Introduction to the Study of Law of the Constitution was
published. This book became one of the most influential works of authority on the British constitution.
Dicey described the rule of law as one of the 'twin pillars' of the constitution (the other being
parliamentary sovereignty) . He saw the rule (or supremacy) of law as the ultimate source of authority
to which all, including the institutions of the state are subject. According to Dicey, rule of law has three
main elements:
Nobody should be punished unless they have broken the law
The same laws should apply to officials of the state just as to the ordinary people
The rights of the individual do not stem from decisions made by the executive (gov't), but from
judgements made in individual cases by individual judges.
Writing more than a century later, Moyra Grant described the rule of law as follows:
'Essentially the concept of the rule of law seeks to equate law and justice, ie it seeks to ensure that the law
and the legal system are fair and equitable. This is an idea which is hard - perhaps impossible - to achieve
in practice'.
While Dicey argued that the rule of law had three main elements. Grant identifies five. By examining
these 5 elements she suggests, it is possible to see the strengths and weaknesses of a constitution which
relies on the rule of law.
The rule of law as a constitutional check
Grant concludes that the rule of law is best seen as a set of ideal principles, rather than as a description
of what actually happens in practice. As an ideal, the rule of law is seen as a protection against
the arbitrary and excessive use of gov't power. In those societies which have a written codified
constitution, protection against arbitrary gov't may be built in and overseen by the courts. In
the USA, for example, the constitution gives the Supreme Court power to declare that laws
passed by Congress are unconstitutional.
No such checks applies in the UK. This explains why Dicey regarded the rule of law as one of the twin
pillars of the constitution. He claimed that is acted as a balancing mechanism which kept
parliamentary sovereignty in check. So, although the courts in the UK have no power to
decide on the content of laws passed by Parliament (because of parliamentary sovereignty),
they may be called upon to review allegations that gov't ministers or officials have acted
The practice
Some constitutional analysts have raised doubts about the practical effectiveness of the rule of law
check. McAulsan & McEldowney (1985), for example, argue that parliamentary sovereignty
has now take precedence over the political and legal constraints embodied in constitutional
conventions and the rule of law. This is partly because in practice, 'parliamentary sovereignty'
have come to mean the wishes of the gov't of the day. A similar argument was made in lecture
given by Lord Hailsham.
McAulsan & McEldowney argue that, particulary since the Conservative party came into power in
1979, gov'ts have taken the rule of law less seriously. These authors provide a list of examples
of ministerial actions which, they allege, amount to 'abuse and excess power'.
In short they argue that, 'A general pattern of contempt for...the constraints on power imposed by the
checks and balances...involved in a constitution based upon the concept of limited gov't'. Similar
criticisms have been made of Labour gov't since '97.
There are others, however, who argue that the rule of law can still be seen as an effective check on the
actions of modern gov'ts. Jowell (1989) for example, argued that the courts have become more
prepared to uphold the rule of law against executive actions which appear either to exceed the
powers granted by legislation or to bypass appropriate legal procedures. He sees the rule of

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