The rule of law is a difficult concept to grasp and proves elusive to substantive definition. However, the following work considers the attempts of various social and legal theorists to define the concept and pertinent authorities are considered. Attitudes and emphasis as to the exact shape, form and content of the rule of law differ quite widely depending on the socio-political perspective and views of respective commentators (Slapper and Kelly, 2009, p16), although there are common themes that are almost universally adopted. The conclusions to this work endeavour to consolidate thinking on the rule of law in order to address the question posed in the title, which is at first sight a deceptively simple one.
The rule of law
Modern legislation places the ‘rule of law’ firmly at the heart of the English legal system. The Constitutional Reform Act 2005, for example, states in section 1 that the Act does not adversely affect ‘the existing constitutional principle of the rule of law’. Moreover, the oath required to be taken by the Lord Chancellor, as specified in section 17(1) of the 2005 Act, pledges that the rule of law will be respected alongside defence of the independence of the judiciary.
Unhelpfully perhaps, at least in the context of the question posed in the title to this work, the 2005 Act does not provide a definition of the concept of the rule of law. As Lord Bingham observed in a 2006 lecture, the draughtsmen of the 2005 Act seemingly acknowledged the difficulty of establishing an accurate, comprehensive and succinct definition appropriate for incorporation in the statute, and so left the job of definition to the judiciary in their subsequent interpretation and application of the Act (Bingham, 2006, Sixth Sir Dav...
... middle of paper ...
...yranny begins.” (Locke, 1690). This Lockean stance emphasises the importance of the rule of law as a golden precept and inviolable principle that controls the way in which a State’s power is exercised over its citizens or subjects.
BIBLIOGRAPHY
Constitutional Reform Act 2005
Dicey A.V., An Introduction to the Study of the Law of the Constitution, (1885)
Locke, J., The Second Treatise of Civil Government, (1690)
Hayek F.A., The Road to Serfdom, (1994) University of Chicago Press
Lord Bingham of Cornhill, ‘The Rule of Law’, November 2006, Sixth Sir David Williams Lecture, Centre for Public Law, University of Cambridge
Raz J., ‘The Rule of Law and its virtue’, (1977) 93 LQR 195
Slapper G. & Kelly D., The English Legal System (2009) Routledge Cavendish
Thompson E.P. (Thompson D. (ed)), The Essential EP Thompson, (2001) The New Press
In his notable piece, Second Treatise of Government, Locke examines his idea on the concept and role of the Rule of Law. Before the Rule of Law was in order, Locke states there exists a State of Nature; the natural order of man before government exists. In the State of Nature, men are in “a state of perfect freedom to order their actions, an...
The role of the judiciary is to interpret and apply the law, not to make it. In some cases an approach that gives slightly more emphasis to the text may be seen to be more in line with the judiciary’s constitutional position. The law is written in the words of the statutes, and Parliament has an obligation to express law correctly. The role of the court courts is not to ensure that Parliament hits the target every time, especially when the legislation does not clearly display those targets.
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
As stated in the Rule of Law Handbook, ““the “Rule of Law” is an inherently (and frequently intentionally) vague term” and “the term is used differently in different contexts” (Rule of Law Handbook, 2011). The Rule of Law Handbook goes on to say, “from an operational standpoint, any approach to actually implementing the Rule of Law must take into consideration many variables-cultural, economic, intuitional, and operational-that it may seem futile to seek a single definition for the Rule of Law or how it is to be achieved” (Rule of Law Handbook, 2011).
Lord Hope notably proposed that ‘the rule of law enforced by the courts is the ultimately controlling factor on which our constitution is based’ . This was concurred by Lady Baroness Hale who stated that ‘the courts will treat with particular suspicion any attempt to subvert the rule of law’ although she acknowledged, ‘the constraints upon what Parliament can do are political and diplomatic rather than constitution.’
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
‘Law as integrity’ embraces a vision for judges which states that as far as possible judges should identify legal rights and duties assuming that they are created by the public as an entity, and that they express the public’s perception of justice and fairness. This requires Dworkin’s ideal of Hercules, a judge of ‘superhuman skill, learning, patience and acumen’, to ask whether his interpretation of law could form a part of a coherent theory justifying the whole legal system. Law as integrity stipulates that the law must express one voice. Judges must accept that the law is based around coherent principles about justice, fairness and procedural due process, in all new cases which comes before them in order to treat everybody equally.
We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law”. In this essay, I will argue the ways that judges do make law, as well as discussing the contrary. The English legal system is ostensibly embedded on the foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions. 1.
The rule of law, simply put, is a principle that no one is above the law. This means that there should be no leniency for a person because of peerage, sex, religion or financial standing. England and Wales do not have a written constitution therefore the Rule of Law, which along with the parliamentary Sovereignty was regarded by legal analyst A.C Dicey, as the pillars of the UK Constitution. The Rule of Law was said to be adopted as the “unwritten constitution of Great Britain”.
Rackley, E (2010). In Conversation with Lord Justice Etherton: Revisiting the Case for a More Diverse Judiciary. Public Law
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...