3.1.2 The Rule of Law Lecture
The ‘rule of law’ is widely accepted to be a critical part of an effective constitution; its principle function is to constrain government action. There is significant disagreement on how to define the rule.
In the UK, the rule of law functions in two ways: firstly, that courts should interpret legislation in a way that gives effect to the rule of law; secondly, that the rule of law determines the validity of government action and some legislation.
a. The History of the Rule of Law
Magna Carta 1215 enshrined the principle that the King was not above the law. The Petition of Rights 1628 remind him of the principles of the rule of law established in the Magna Carter. The Habeas Corpus Act 1679 specifically legislated for the right to be brought before a court, and the Bill of Rights 1689 stated that the law could not be made, repealed or suspended without the will of Parliament.
The scope of the rule of law remained vaguely defined during this period.
b. Defining the Rule of Law
The rule of law is a term of widespread debate. Lord Bingham, in ‘The Rule of Law’ (2007) argued that ‘[t]he core of the existing principle is … that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’.
Content Free or Content Rich?
- Raz (1977) argues that the rule should be content free; i.e. that it should only be about form and procedures by which law is created.
- Dworkin (1985) argues in the alternative. This concept of the rule of law does not distinguish between the rule of law and substantive justice; instead, it requires that as part of the rule of law it encompass and enforce moral rights.
c. Dicey and the Rule of Law
Dicey (1959) thought the rule of law had three distinct conceptions:
- No individual can be punished except through the process of law and the courts.
- No one is above the law.
- The constitution is pervaded by the rule of law, since general principles of the constitution are the results of judicial decisions which determine the rights of private citizens.
d. Is the Rule of Law a Useful Concept?
Griffiths (1979) explained that the rule of law has a correct function in ensuring that public authorities do not exceed their powers and that criminal offences are dealt with in a fair and just manner; but that the concept has also been misused to preserve legal and political institutions.
Loughlin (2009) argues that the rule’s main strength is as an aspiration, but it must be recognised that its direction remains an essentially political task.
e. Judicial Interpretation of the Rule of Law
The main principles of the rule of law elucidated by judicial interpretation are:
- No one must be punished by the state except for a breach of the law.
- Government under law; Equality before the law.
- Individuals’ rights are protected through the ordinary law and the ordinary court system.
- Legal certainty and non-retrospectivity.
- Fair hearing by an independent judiciary.
f. The UK Legal System of the Rule of Law
Arbitrary and wide discretionary powers provide a threat to the rule of law. Equality before the law is potentially undermined by special powers, privileges and immunities from ordinary law that Parliament has granted. The courts should not be able to extend criminal offences laid down by Parliament.
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