Rule of Law

• The rule of law is a safeguard against dictatorship, and it supports democracy. Authority is distributed between different bodies and no single body can exercise power in an unchecked way
• 1. Theories of Rule of Law

  • Absence of arbitrary power of the state - The state's power must be controlled by the law, which must set limits on what the state can or cannot do. In our legal system, actions of and decisions by government ministers can be challenged by judicial review
  • Everyone must be equal before the law - No person must be above the law, the law must deal with everyone in the same way. Difficult in practice as court actions and good representation is expensive
  • The law must be supreme - Most laws are made through legislation, although judicial decisions still create law
• 1. Theories of Rule of Law - Joseph Raz argues that the main function of ROL is to ensure that the law should conform to standards designed to enable it effectively to guide action. The law should:

  • Be openly and clearly stated and readily accessible to the public
  • Not have retrospective effect
  • Be made by proper procedures
  • Be relatively stable and not change frequently
  • Provide open and fair hearings
  • Be administered by an independent judiciary
• 2. Importance of Rule of Law

  • Law making - The process by which the law is made must be open and fair. An Act of Parliament can only become law if it is passed by both houses, which debate and vote on the law. HoL perform a vital check on all legislation and they vote and debate on all new laws
  • Legal system - Ordinary people need to be able to resolve their disputes effectively through the civil justice system, which should be free from corruption and not improperly influenced by public officials. The civil justice system should be accessible and affordable, UK has funding through LASPO 2012
• 3. Application of Rule of Law in criminal law

  • Many areas of criminal law are aimed at protecting people or property
  • Regulatory offences protect us through driving offences and ensuring food is fit for human consumption
  • For every offence, the law has to be clear and it must be proven that D committed the crime
  • There is a maximum sentence for each offence to ensure defendants are not being treated unfairly
• Application of Rule of Law in tort law

  • Many torts are aimed at protecting people and their property and give the right to claim compensation for damage caused by breaches of law
  • Risk factors in negligence promote equality as they test whether a duty of care has actually been breached or if something else has happened. For example, special characteristics in the case of Paris v Stepney Borough Council