Rule Of Law Essay

In parallel to the USA, New Zealand’s current constitution is neither supreme nor entrenched, a trait inherited from Great Britain. A benefit of this i... ... middle of paper ... ...of the legislature whose role is to make law. A new supreme constitution would remove the executive power to overrule judicial authority in circumstances where decisions were made involving the constitution. In deciding to make a supreme constitution for New Zealand a consideration of whether to grant the judiciary with this extended power needs to be deliberated. Many would argue that allowing an un-elected judge supreme power over the elected Members of Parliament would be undemocratic and henceforth violate the staple principle of our society.

These types of decisions cannot be solved with an "originalist" view, because the Constitution did not have the foresight to deal with such issues. In this same manner Justice Douglas implements penumbras to arrive at a general right of privacy that is not explicitly written into the Constitution. These penumbras are all valid within the spirit of the Constitution and does not go against anything specifically forbidden in the document. Thus, the justification of Justice Douglas to create a zone of privacy is legitimate and the old archaic Griswald laws is forever vanquished into the history books. Justice Douglas writes; "Various guarantees create zones of privacy.

However, the ECJ held otherwise. The HL was confused as to whether it should obey the latest will of parliament or the ECA 1972. It chose to act upon the latter and to award the injuction.Many have argued that parliamentary sovereignty still existed, as parliament still have the right to withdraw from the EC or to legislate in conflicts with its laws; so, as long as parliament holds into these fundamental powers, it will have its sovereignty. As introduced by Kavanagah the HRA does not challenge parliamentary sovereignty specifically. But in reality the HRA only retains the doctrine of Parliamentary sovereignty in official terms, but limits the legislative power of parliament in substance .

In this essay I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this is essay is the distinction between formal and substantive theories of the rule of law. In order to reach my conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil. Most people would dispute that the significance of law in society is to obtain justice, however justice is simply a term which is determined subjectively, it relates to an individuals

Regarding judicial review, Chief Justice John Marshall wrote in his opinion that, “It is empha... ... middle of paper ... ...es his point by saying that it does not specify the extent of those powers. Personally, I believe that judicial review is a necessity in order to preserve the constitution. Thus, I disagree with Gibson’s opinion. Although I understand the content of his words and why he believes them, but I think a very specific power such as judicial review is necessary to check the other branches. The judiciary cannot abuse the power but the legislative and executive branches can create laws that are abusive to the powers given to them by the constitution.

As soon as the governing people are added in, the government can’t then be by law on there own. Although the situation is not undoubtedly as the making of particular laws can be guided by open and relatively stable general laws that have been made. For the Rule of Law to have meaning in a democratic society, it has to mean that those who run it have comply with it for it to work; there must be no room for an “ends justifies the means”

The answer is logically yes although there are no specific words in the Constitution to support such an answer. Based on the type of government intended by the Constitution, the government is expected to protect individual liberty. As Marshall says, "[The government] will certainly cea... ... middle of paper ... ...urthermore, the president also was not in a position to allow the federal government more leeway in interpreting their powers. He does not make any laws of his own and has no power to settle any questions of the states. Clearly, the Supreme Court was the branch that could most easily facilitate the strengthening of the national government into an effective and unified nation rather than thirteen independent countries as the states had seemed under the Articles of Confederation.

As time has changed so has the American people, we often interpret our freedoms in a self serving manner, disregarding the good of the whole and also the good for the future. Thus there are no true flaws in the Constitution, it appears that the conflict emerges in the individual and their self, and poses question when we must decide when to compromise the morals that our Constitution was founded on, or when to stick to what we know is right and honest.

(Reference in bibliography) Dicey states that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. According to him Englishmen were ruled by the law and by the law alone; a man with us may be punished for breach of law, but can be punished for no... ... middle of paper ... ...ference in international law. "Its object is essentially that of protecting the individual against arbitrary interference by the public authorities in his private or family life." (Reference in bibliography) The European Court of Human Rights held in the Malone case, that the English practice of interception was insufficiently grounded in law to allow it to be justified. Conclusion In summary, constitutionalism forms an institutional foundation for the rule of law, strikes a proper balance between the rule of law and the rule of person, provides a minimal guarantee for the justice of both the content and the form of law and, finally, is itself safeguarded by the rule of law.

According to legal positivism, justice can be whatever legality calls it, for what is legal has been established as legal and is enforced by law. These concepts of right and wrong would not exist without the concept of law itself. Furthermore, law is dependent on political power. A law with no power behind it is not authoritative since it cannot be enforced. Populaces are steered to believe that calling a law morally unjust does not carry any weight, for the mental projection of an ideal government structure with a strong legal system allows laws to take power over deciding what is right and wrong.