Question 1
The formal and substantive theories of rule of law have been enormously influencing the UK’s Law system. Rule of Law is ‘a treaty or doctrine that describes the extent to which certain features as present within a country.’ Formal theory is that the concept will not be finding the details of law by using the previous judgements. It mainly focuses on how it is presented and the way on how to apply in daily life. The procedure is the major thing that formal theories are considering about. And the formal theories basically do not take the law’s content into consideration. Whereas substantive theory is to show to the general public how the law will be exercised, it is more concerning about the details inside the law and it is the procedures
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Starting with the formal one, Joseph Raz’s Rule of Law had mainly focused on the content on the rule of Law, the Law itself should be clear and constant, the procedures must be exposed and thus easily known to the public. It is because Law literally is complex for people to understand in short period of time, what are basically the procedures and the Law system itself. For the substantive theory of Rule of Law, the law itself the law should be easily accessible. When issues arise, it should be resolved by applying the law, discretion should not be exercised. The public authorities should exercise their authorised power within good faith, should not be acting beyond the boundaries. In addition, the law should also have included Human Rights to the convicted when facing a trial, the trial itself should be fair enough. The state should also have its own obligation to obey the international …show more content…
People should have the rights to challenge the court’s decision when the court making a mistake but not simply put them into the concentration camp without having a judgement. Consequently, there will be having a lot of people who cannot redress the judgement from the court. In the case of R (on the application of G) v Immigration Appeal Tribunal and another; R (on the application of M) v Immigration Appeal Tribunal and another , Lord Philips MR stated that Rule of Law will become vulnerable if the Parliament intend to remove the right of people to challenge the court decision. It may ultimately lead to discontent between people and the authorities and the courts and the people may think the courts are not performing independently, the courts are just following the decision from the executive to perform their duties. In short, if people don’t even have the right to challenge the court decision but being repressed by the government, there is no sign of respecting the rule of law in either the formal and the substantive
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.
We live in a very diverse society, observance of the rule of law is the best way that can guarantee that our basic human rights are preserved, successful government at home is operating and a fair progress on the international level is maintained. Basic principles of the rule of law go back to Dicey’s theory, which states that there should be an absolute supremacy of regular law, no one should be above the law and that the Constitution is the result of the ordinary law of land. There is no clear meaning of the rule of law; therefore it is essential that the government maintains the basic principles of the rule of law that were established by the philosophers who feared the concentration of power in one’s hands, on order to prevent tyranny. Rule of Law cannot exist without a transparent legal system, the main components of which are a clear set of laws that are freely and easily accessible to all, strong enforcement structures, and an independent judiciary to protect citizens against the arbitrary use of power by the state, individuals or any other organisation. Only if each branch has influence and retraining functions on each other, can the parliamentary machine function properly and give the effect of the rule of law without imposing any tyrannical or arbitrary power by a specific institution, which would infringe the main principles of the rule of law. The issue would arise if there would be very weak separation of powers with a strong concept of parliamentary sovereignty at the same time. The power of judicial review ensures that officials act within the scope of their legal powers and that individuals have an effective way of obtaining remedies if their rights were violated. Although UK is said to have an efficient system of...
It has been said that we are living in a democratic country where we are free to do as we wish but there are certain things that you can arrested for if you do, like speaking against the PM or walking naked in the streets. Even if they say that we are free, we are still somewhat in bondage by social order. In this case the court acts as the “Me” and the individual as the “I.” The “Me” is the one responsible to keep the “I” in
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.
meaning of the rule of law is a state of order in which events conform
Parliamentary sovereignty has traditionally been the cornerstone and leading authority of the UK’s unwritten constitution related to all tenets of legality. Whilst parliamentary sovereignty remains a supreme and guiding constitutional principle, its power is no longer absolute as a result of the UK’s membership in the European Union, the creation of the European Communities Act 1972 and devolution settlements. The repercussions of these changes have not only resulted in various controversial cases such as Factortame, but have in addition led to a dynamic change in the relationship between the judiciary and Parliament. The judiciary is no longer forced into subservience as the creation of the Human Rights Act 1988 and Constitutional Reform Act 2005 have created a new settlement changing the nature of constitutional authority in the UK. The CRA 2005’s creation of the Supreme Court granted the judiciary greater independence and provides a clear separation of powers, embodying the democratic principle of the rule of law.
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’.
The rules of statutory interpretation are a guide for judges to decide what parliament means in statutes. The judge would look towards the rules for assistance when faced with a statute, which is difficult to apply to the given facts . There are three main rules. The literal rule requires that words must be viewed in their plain and ordinary meaning, even if there is some sort of absurdity . The golden rule requires words to be given their natural meaning to the extent where they do not produce absurdity . Finally the mischief rule aims to deduce Parliaments intention by looking at former statute . In addition to these, the purposive approach considers the wider purpose of the legislation . As suggested by Quintin Johnstone, the rules of statutory
Let us start with a more general debate about both nature and purpose of the European human rights system: As the overload of applications still poses one of the main problems a mechanism was introduced in order to avoid the so far established case-by-case approach and instead let pilot judgments handle repetitive cases, thus conceiving of the Court as a constitutional court. In doing so the Court avoids the backlog of thousands of cases which can actually all be traced back to one and the same structural problem and instead singles out selected cases (Buyse 2009). The main objective is to reduce the Court’s workload, firstly by directly demanding resolution of all comparable cases in the respondent state and secondly indirectly as this will eventually lead to national reform (O’Boyle, 2011). What is more is that by concentrating on pilot judgments it supposedly can enunciate general principles of human rights law, arguing that it is the Courts main role to be a European standard setter, „constitutionalizing the human rights protection under its jurisdiction (Oppedal 2011: 94)“. Prof. Rick Lawson gets to the heart of the debate when he advocates for the constitutional court’ camp, claiming that „the Court...
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
The rule of law does not have a precise definition. Often, the term operates as a catch-all for other conceptions of which the relevance to philosophical and political theory is hard to define. Yet at the same time, it is difficult to find out what the cash value of the concept is in helping to understand how best to fashion human relationships. It has been viewed in very diverse ways. One central clue to the meaning of the ‘rule of law’ is that it requires that there be some sort of rules. The rule of law in its most basic form is the principle that no individual is above the law and everyone must answer to it. The major legacy of the Constitutional system is that the rule of law is viewed as a doctrine that no individual stands above the law, and that all rulers are answerable to the law. The rule of law is a theory of governance relying upon a series of legal and social constraints designed to encourage order and to prevent arbitrary and unreasonable exercise of government powers.
In the common law legal system, laws are created by and refined by judicial formation. This implies that a ruling in a case currently pending depends on the rulings made in previous cases and affects the law to be applied in future cases. Equity doctrines, however, was developed and administered in England by the high court of chancery in the exercise of its
His next five laws are about how law is applied; agencies of the law must enforce the law using fair and equal processes. Therefore is is clear that formal theories focus on only procedures and application. The substantive theory of the rule of law, it is important to note that the rule of law is inherently cumulative, meaning it is concerned with the same principles as the formal theory of the rule of law, however adds to it by focusing on its content, substantive theorist believe that law’s content must be good in order to comply with the rule of law. Like Raz, Lord Bingham, the key advocate for the substantive theory, also has eight principles, however it is only his fourth principle that is substantive - “the law must afford adequate protection of fundamental human rights’’ It is evident that this principle is about the substance of law, the substantive theory goes further by explaining law must protect individuals and must not require us to breach our human
The pure theory of law is a system of norms addressed to officials who must apply ...
Criminal law is basically the foundation of the justice system. The law tells citizens what we can do and cannot do, help police officers to make an arrest, and it also involves taking criminals to prison. Crime is defined as, “whatever the law declares to be a criminal offense and punishes with penalty” (pg. 1). There are a few characteristics of criminal law; harm which threatens society or individual, warning so that