Article 356(3) instructs the administration to act in conformity of the Constitution. Articles 245 and 256 state that the executive and legislative powers have to be used as specified in the Constitution. All laws, regulations, rules and notifications have to abide by the Constitutional provisions. If any laws are opposed to the rights granted under Part III of the Constitution then such a law shall be void and ‘ultra vires’ under Article 13. Articles 20 and 22 state that no person shall be deprived of his life and liberty.
To describe these two sides of law specifically there is positivism and the natural law theory. The positivism theory simply states that law is law, that it is not dependent on morality. It will be law whether it is good or bad law and it will be obeyed until is changed. Jeremy Bentham stated “that it is what law is and ought to be even if it is ‘bad’ it is still undeniably law” The utilitarian theorist didn’t completely reject the idea or morality in law as it is believed that the creation of law is still influenced by morals. It is said that this idea gives lawyers a clear structure on applying the law whereas taking a moral view causes confusion.
The rule of law is extremely important in our democratic republic as it ensures that justice is served equally and that the law is applied fairly to all and does not discriminate or make biased decisions that could lead to gross miscarriages of justice. It can therefore be said that the independence of the judiciary also contributes to the upholding of the importance of rule of law. However the Bhe case illustrates that it is not only the executive or ‘legislature that does not conform to the doctrine of separation of powers. In this case, the judiciary declared the principle of primogeniture to be unconstitutional and therefore invalid. In terms of separation of powers, the judiciary should have left it up to the legislature to first try and develop that aspect of customary law to be more constitutional before declaring it invalid.
This theory is concerned with procedures, it focuses on the way the law is created and applied, proposing that the rule of law is upheld in a situation when good procedures are followed. As Lord Bingham suggested, this theory cannot be regarded as observing the rule of law, as citizens human rights are disregarded if good procedures are followed in the process. Joseph Raz puts forwards his formal theory of the rule of law, stating that; “All laws should be prospective, open and clear”, any vague areas of the law are likely to result in a breach of the law. Laws are also required to be “relatively stable” and to not undergo continual changes which will ultimately result in civilians being unaware of their boundaries and legal limits within the state. Raz also states that “the principles of natural justice must be observed” and that “the courts should have review powers to ensure conformity of the law”, however, the formal theory shows no regard of “natural justice” as it is a theory concerned with the procedures followed and not the content of the law, so therefore there is weakness in Raz’s theory of the rule of law.
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.
Ways which the English Legal System encompass the doctrine of the rule of law What makes an Impartial Judiciary so important? Lisa Webley and Harriet Samuels defined the separation of powers as a theory or doctrine that describes the way in which a state organises the distribution of power and function between its different parties. The separation of powers is divided into three branches which are the executive, legislative and Judiciary. Impartiality means that the judge should not show bias to any of the parties. The two parties should be treated in the same way in terms of equality.
To begin, we must understand the meaning of the rule of law and why the UK courts implement this constitutional principle in day to day practice. British jurist and constitutional theorist A.V. Dicey paved the way for much of our understanding of the rule of law we know today; giving a strong starting point for academics such as Lord Bingham and Joseph Raz whom later on developed the formal and substantive theories of the rule of law. Dicey has three key principles: no punishment unless there is a breach of the law; Law should not be exercised arbitrarily; and there should be a consistency in the creation of law. Dicey simply means that an individual should be aware of laws which apply to them, they are free to act as they please, whether they
In defence of the school of legal positivism Introduction Legal positivism is a legal philosophy or thought advocating for the written rules of law to be only the source of law. The implication hereof is that in the interpretation of any text of law recourse should be sought in the wording of that very same law or text to be interpreted. In our view, this is a sound philosophy because it promotes and maintains legal certainty by basing the interpretation of law on known and written rules, rather than some unwritten rules or personal opinion of judges that may be based on some ethical and moral principles. In this regards, the separation of law from morals as maintained by positivist thinking may contribute to the neutrality and objectivity
Neutrality implies not judging the validity of an opinion. Dworkin does not rule out the possibilities of some judgments going wrong, and some being right than others but still maintains that judges have a responsibility to interpret the law, and that they should interpret the law in its best moral light. Dworkin’s point is that we should accept that all legal disputes are solved are solved using the law itself. Hart believes that there can be gaps in law, although there are sources like the Constitution of the Republic of South Africa, he still maintains that such sources will at some point prove to be indeterminate, forcing judges to exercise discretion.
His view was that those in power should be subject to some sort of 'higher' law and should govern in accordance with that law. Writing in the Victorian era Professor A V Dicey in his work The Law of the Constitution stated that the rule of law was one of the main features of the constitution of the United Kingdom and that, in this context, the phrase embraced at least three distinct though kindred concepts. In his 1st theory Dicey was asserting that, in those societies where the rule of law obtains, the law does not give those in authority wide, discretionary powers to interfere with the personal freedom or property of the... ... middle of paper ... ...he seizure of his books and papers, but since the warrant didn't specify any particular offence, these actions were not authorised by Common Law or statute, and therefore were unlawful. In the case of Ghani v Jones (1970) the plaintiff's passport was taken away from him when his wife disappeared under suspicious circumstances. It was held that the police had no grounds to retain a person's passport unless they had grounds for arresting him.