Rule of Law

• Define the Rule of Law

  • Two main principles
  • All people are subject to the law and no one is above it
  • The processes of law made and administered by each country should be fair
• Most commonly accepted writings on rule of law

  • A.V Dicey thought the rule of law was an important feature that distinguished English law from other countries in Europe
  • An absence of arbitrary power
  • Equality before the law
  • Supremacy of ordinary law
• An absence of arbitrary power

  • States power must be controlled by the law
  • law sets limits on what state can or cannot do
  • Eg, Government ministers actions and decisions can be challenged in the court by judicial review
• Equality before the law

  • No person must be above the law, no matter how rich or powerful
  • Those who carry out functions of the state must be accountable under the law for their actions
• Supremacy of ordinary law

  • Most laws are made by legislation by parliament or delegated legislation
  • although delegated legislation can be challenged, this law has to observed by all
• Evaluation of A.V Dicey's writings

  • Criticism of his view on the absence of arbitrary power is that parliament can have absolute power over law-making, due to the principle of parliamentary supremacy, especially now we are not members of the EU
  • There is an issue with equality- sometimes only the wealthy can afford to bring a case and legal aid for those less well off may be unavailable
• Tony Honore theory on rule of law

  • He believes that the rule of law exists when a governments powers are limited by law itself

  1. No person shall be sanctioned except in accordance with the law
  2. The is equality before the law and there must be no discrimination on any grounds- Race Relations Act 1965
• The importance of the rule of law

  • The rule of law and law making
  • The rule of law and the legal system
• The rule of law and law making

  • rule of law is very important when making law and its existence can be seen in:
  • law making must be open and fair, acts of parliament have to be passed by both houses of parliament and the house of commons is elected, all of this is open to scrutiny and the ability to lobby
  • also exists with delegated legislation as parliament must pass an act in the first place, parliament also have the ability to check DL as well as the courts
• The rule of law and the legal system

  • rule of law exists in the operation of the legal system itself, Eg the fundamental rule that every defendant in a crim case must have a fair trial
  • also, no person can be imprisoned without a trial
  • in relation to civil matters, the rule of law dictates that everyone can resolve their disputed effectively through the court system or via ADR
• Criminal law

  • protects citizens- law of murder, manslaughter and non-fatal offences
  • protects property- theft, burglary, robbery and criminal damage
  • regulates behaviour- crimes preventing public disorder and disruptive behaviour
  • burden of proof is on the prosecution
  • sentences are well defined with legal maximums and mitigating factors
• Law of Tort

  • gives individuals the ability to protect their property and person
  • if they are wronged by another the law is well defined and will allow compensation to be claimed
  • variety of torts which cover all sorts of activity
• Law of Contract

  • allows people the freedom of contract to decide what arrangements they want to make between themselves
  • law has created legal protection for the consumer who may be at a disadvantage
  • Eg, The Sale of Goods Act (1979) and The Consumer Rights Act (2015)