Rule of Law

  • Created by: phoebs.b
  • Created on: 27-03-18 22:07

AV Dicey, Introduction to the Study of the Law of the Constitution (1885) - said that the rule of law means 3 things;

  • the predominance of law over the influence of wide discretionary arbitrary prerogative powers means that any individual may be liable or punished for a breach of law and nothing else;
  • everyone is equal in the eyes of the law;
  • the principles of British constitutional law do not originate in higher constitutional codes (such as in countries like the US), but from the ordinary law that deals with the rights and obligations of private individuals. 

R v Rimmington (2006) - Lord Bingham said that conduct that is forbidden by law should be clearly expressed so that individuals know that their actions are wrong before they do it and that nobody should be punished of committing a criminal offence when it was not a criminal offence when it was done. 

Sharma v Brown-Antoine (2007) - Lord Bingham and Lord Walker said that the rule of law requires that the law is even-handed and apply to all in the same way (with the exceptions of legal immunity or exemptions). 

Von Hayick, The Road to Serfdom (1944) - argued that the state should maintain the rule of law with as little arbitrary intervention as possible. Therefore, from this reasoning, it is possible to argue that the state should not nationalise industries or regulate banks and other businesses. 

Sir Ivor Jennings, The Law and the Constitution, 5th edn (1959) - critically viewed Dicey's conception of the rule of law. He found that Dicey's concentrate on liberty, certainty and the limitation of discretionary powers were inconsistent with the 20th-century idea of social justice which came from the widening of discretionary powers. Sir Ivor Jennings listed 4 characteristics of a legal system based on the rule of law.

  • The state as a whole must be regulated by law. 
  • There must be an implicit separation of powers. Police powers must be clearly defined. 
  • There must be clear general rules interpreted and applied by the courts. Criminal statutes must be interpreted strictly. 
  • Equality and liberty are also essential features of the rule of law. 

LL Fuller, The Morality of Law (1969) - identified 8 requirements of a legal system based on the rule of law. 

  • There must be a precise body of laws which can be identified and stated clearly.
  • These rules of law must be published so that people know where they stand. 
  • Legislation must be written in clear language so that people can understand it, and must be freely available to the public.
  • Legislation must not be retroactive so as to outlaw something done in the past which was not against the law when it was done. 
  • The law must be consistent in both substance and application so that there is nothing contradictory in it. 
  • Laws must be able to be obeyed without undue hardship. This takes into account the cost and practicality of implementing and enforcing laws. It also includes the impact on…


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