Beruflich Dokumente
Kultur Dokumente
Intro
Generally, the rule of law is the principle that no one is above the
law and treated equally among citizens. Laws are made to maintain law
and order in our society and provide a harmony environment for the sake
of progression of people.1 It means government under the law because
the government is subject to the law.2 Case for this evidence in the UK
legal system is M v Home Office (1994).3 The rationale behind it is to
control the exercise of public power by the state ensuring that it is
exercised strictly within legal limits. The rule of law may be interpreted
either as a philosophy or political theory which lays down fundamental
requirements for law.4
Principle of the rule of law is recognized in treaties establishing both
bodies of European law. The rule of law was asserted in Magna Carta
1215, which enshrined the principle that even the King was not above the
law.5 It also protects citizens against arbitrary powers, guarantee the right
of fair trial by juries. Sir Edward Coke in the case entitled Prohibitions del
1 Reference to: B A Garner, Black's Law Dictionary, 9th edn, pg. 1448.
2 Reference to: A.V Dicey, Law of the Constitution, (9th edn London: Macmillan,
1959) pg.194
3 Reference to: M v. Home Office [1994] 1 AC 377.
4 Reference to: H Barnett, Constitutional and Administrative Law (9th edn
Routledge, Oxon 2011) pg.48
5 Reference to: L Webley & H Samuels, Public Law Text, Cases and Materials, (1st
edn Oxford University Press 2009) pg.85.
1
Roy (1607) diplomatically but firmly asserted that the king could not act
as a judge using his own reason to reach decision.6
However, it can be argued from socialist perspective that liberalism
pays too little regard to true equality between persons and too great
attention to the protection of property interests. The rule of law would
become meaningless if it is general over-used and ideological abused. In
general, everything has advantages and disadvantages, and indirectly the
controversial arguments contributed by both sides led to the improvement
of legal systems and precise implementation for the rule of law that has
been performed at the present day.
The first point brought out by Dicey requires that no man can be
punished unless there is a clear breach of law.10 This indicates that in
England, unless a law is broken, neither a person nor their goods can be
lawfully made to suffer.11 This is clearly designed to ensure the
government or state does not have rights to make secret or arbitrary laws
thus protecting the individual.12 One of the recent and important cases in
this field is the case of A and others v Secretary of State for the Home
Department.13 Moreover, in ensuring that no power is to be misused,
regular law should not allow the arbitrary or extensive discretionary
powers on state governor. Therefore, it is very important for law to limit
and restrict the states power as to prevent the abuse of power. A similar
case to it is R v R which is deemed to be unfair and the law should be
perspective instead.14
2nd Postulate
9 Reference to: A L Sueur, M Sunkin, J E K Murkens, Public Law text, cases and
materials (1st edn Oxford University Press, 2010) pg. 98.
10 Reference to: L Webley & H Samuels, Public Law Text, Cases and Materials,
(1st edn Oxford University Press, 2009) pg. 92.
11 Reference to: Law Teacher, Explain the rule of law URL:
http://www.lawteacher.net/public-law/essays/explain-the-rule-of-law-public-lawessays.php accessed on 28 April 2014.
12 Reference to: H Barnett, Constitutional and Administration Law, (8th edn,
London: Routledge, 2011).
13 Reference to: A and others v Secretary of State for the Home
Department [2004] UKHL 56.
14 Reference to: R v R [1991] 3 WLR 767 House of Lords.
3
Secondly, Dicey stated that all is equal under the law as the law is
supreme, the government is also subjected to the law and that everyone
irrespective of rank shall be subjected by the same laws and no specialty
will be given to anyone.15 This is in line with the notion brought by Thomas
Fuller that once said Be you ever so high, the law is above you.
However, F.A. Hayek would argue that this does not mean that it is
impossible to enact law that differentiates between different groups in
society.16 The case of Entrick v Carrington is usually cited to provide
evidence that even the government is subject to the law and to the
authority of the courts.17 Through this matter, it illustrates that there is no
separation between tribunal between with state officer or ordinary people.
constitution also leads him to put forward the idea that government
should be conducted according to law.19
3rd Postulate
Thirdly, Dicey held that Individuals rights are protected through the
ordinary law and the ordinary court system.20 It expressed a strong
preference for the principles of common law declared by the judges as the
basis of the citizens rights and liberties. Dicey believed that the common
law gave better protection to the citizen than a written constitution. 21 As
Lord Manfield in Omychund v Barker held that:
A statute very seldom can take in all case, therefore the common
law, that work itself pure by rules drawn from the fountain of justice,
is for this reason superior to an Act of Parliament.22
Sir Ivor Jennings, who considered that Diceys third principle of the rule of
law, was more a reflection of his bias for the British System rather than a
necessary condition for the rule of law to flourish. 23 Which means that if an
individual believes that the executive has acted outside of its legal power
or
social
well-being
of
individuals
or
communities
and
1. The law must be clear and accessible to all. Everyone must be able to
understand the law without undue difficulty. This is because if one
everyone is bound by the law, they must be able without under difficulty
to find out what it is, even if that means taking advice, and the answer
given should be sufficiently clear that a course of action can based on it. 31
In 2003, nearly 9000 pages of statutory instrument were passed and due
its volume, it will post great difficulty.
3. Laws of the land should apply equally to all, save to the extent that
objective differences justify differentiation. 33 However, there are certain
exception which include children, the mentally ill, handicap and prisoners.
30 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 27-38
31 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 28.
32 Ibid.
33 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 31.
8
34
6. Minister and public officials must exercise that their powers in good
faith or not it will lead to the down fall of the system. This sub-rule reflects
34 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 32.
35 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 33.
9
8. All nations must follow rule of law by complying with international law.
However, there are instances when the UK themselves disregarded the
international law. For example, in 2003, the UK and the US went for war to
Iraq to seek for weapons of mass destruction. The UNSC did not allow
them and this was a breach of international law.
36 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 35.
10
Professor Joseph Raz approaches the rule of law from a morally neutral but
conceptual stand point and argued that the rule of law should be limited
to formal values.37 According to him, the rule of law is just one of the
virtues which a legal system may possess and by which it is to be judged
and shouldnt be confused with other aspect or it would become a by-word
for general political ideals, hence, separate from its actual meaning.
Razs conception encompasses the additional requirements of
guiding the individuals behaviour and minimising the danger that results
from the exercise of discretionary power in an arbitrary fashion. 38 He
claimed that if the rule of law is the rule of good law, then to explain its
nature is to expound a complete social philosophy. 39 This is because he
thinks that legal philosophy is best understood as one branch of the
philosophy of practical reason philosophy engaged in the analysis of
reasons for action.40 For the rule of law to exist in society, certain qualities
must be present that the law must be clear if it is to be capable of being
obeyed.41 Razs theory of laws authority shows that law must be
understood in terms of its moral purpose. In conceiving of law, one must
37 Reference to: H Barnett, Constitutional and Administrative Law (9th edn
Routledge, Oxon 2011) pg.57
38 Reference to: Law and Health, What is the Rule of Law URL:
http://www.healthrights.am/eng/more/265/ accessed on 27 April 2014.
39 Reference to: P Allsop, Law Quarterly Review, (1st edn Sweet & Maxwell,
London) pg. 195.
40 Reference to: M Giudice, Joseph Razs Legal Philosophy URL: http://ivrenc.info/index.php?title=Joseph_Raz%27s_Legal_Philosophy accessed on 27 April 2014.
11
Raz claimed that in conceiving a law one must understand that law
claims to be morally authoritative, so law must be understood to claim to
reproduce or satisfy demands of morality.43 We must know that when law
does reproduce or satisfy demands of morality, we are not only restricted
to the conclusion that this is simply a matter of contingent or historical
fact, we are also entitled to the observation or conclusion that this is part
of laws nature, and that its claim in a particular instance happens to be
justified. Razs views show in equal measure distinctive contributions to
philosophical theorizing of law and motivation for pursuing old questions
from new directions.
44 Reference to: C Murphy, Law and Philosophy, (Springer, 2005) pg. 239.
45 Reference to: H Barnett, Constitutional and Administration Law, (8th edn,
London: Routledge, 2011).
13
Conclusion
The rule of law is very important in a government system as it includes
accountability, good governance, human rights protections, justice and
independence of judiciary. Without the rule of law and its justice, the
implementation of law will be difficult because people will have no respect
towards the law, hence, lead to the domination of certain powerful party
to the weak party. Compliance with the rule of law will provide stability,
certainty, independence as well as efficiency in settlement of national
disputes according to the law. Thus, it could also assist the states in
economic and legal development. Therefore, it is necessary to have a
53 Reference to: K Marx & F Engels, The Communist Manifesto, (London: Communist
League, 1848)
16
proper legal process in place that provides for accessibility to law with
affordable costs, procedural fairness that the evidence be both complete
and reliable.54
Bibliography
Books
Allsop P, Law Quarterly Review, (1st edn Sweet & Maxwell, London)
Barnett H, Constitutional and Administration Law, (8th edn, London:
Routledge, 2011).
Barnett H, Constitutional and Administrative Law (9th edn Routledge, Oxon
2011)
Bradley A W & Ewing K D, Constitutional and Administrative Law, (14th edn
Pearson Longman, Essex 2007)
Brown & Bell, French Administrative Law.
Dicey A V, Introduction to the study of the Law of the Constitution (10th
edn 1959, London: Macmillan & Co)
Dicey, A.V, Law of the Constitution, (9th edn London: Macmillan, 1959)
Fuller L L, The Morality of Law, (New Haven: Yale University Press, 1964)
Garner B A, Black's Law Dictionary, 9th edn.
Hayek F A, The Road to Serfdom, (1st edn Chicago: University of Chicago
Press, 1944)
Lautenbach G, The Concept of the Rule of Law and the European Court of
Human Rights, (1st edn OUP, Oxford 2003)
Lord Bingham of Cornhill, Dicey Revisited [2002] Public Law.
Murphy C, Law and Philosophy, (Springer, 2005)
Ryan M, Unlocking Constitutional and Administrative Law, (2nd edn Hodder
Education, Oxon 2010)
Singh R, Public Law Study Manual, (1st edn Brickfield Asia Corporation)
18
Articles
Raz J, About Morality and the Nature of Law, 48 American Journal of
Jurisprudence 1 (2003).
Electronic Sources
Law and Health, What is the Rule of Law
Law Teacher, Explain the rule of law
M Giudice, Joseph Razs Legal Philosophy
URL: http://ivr-enc.info/index.php?title=Joseph_Raz%27s_Legal_Philosophy
accessed on 27 April 2014.
URL: http://www.healthrights.am/eng/more/265/ accessed on 27 April
2014.
URL: http://www.lawteacher.net/public-law/essays/explain-the-rule-of-lawpublic-law-essays.php accessed on 28 April 2014.
19
Table of Statutes
Prohibitions del Roy, (1607, published 1656 (1572-1616) 12 Co Rep 63).
A and others v Secretary of State for the Home Department [2004] UKHL
56.
Entick v Carrington [1765] EWHC KB J98.
M v. Home Office [1994] 1 AC 377.
Omychund v Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33.
R v R [1991] 3 WLR 767 House of Lords.
20