The Rule of Law

• What is the rule of law?

  • No one is above the law and are entitled to all of the protections within the law
• What are the two approaches to the rule of law?

  Formalistic and substantive
• What does the formalistic approach entail?

  The rule of law should only be about the form of law and the procedures by which law is made
• According to Raz which principles have come from the rule of law?

  • All laws should be prospective, open and clear
  • Laws should be relatively stable
  • The making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules
  • The independence of the judiciary must be guaranteed
• What is Joseph Raz's understanding of the rule of law?

  • The rule of law is designed to minimise the harm to freedom and dignity which the law may cause in pursuit of its goals
  • “A non-democratic legal system, based on denial of human rights… may, in principle, conform to the requirements of the Rule of Law”
• The Morant Bay Rebellion

  • During the protests of freedmen, Governor Eyre declared martial law which resulted in the deaths of 439 Jamaicans
  • Eyre passed a retrospective law giving him immunity for all acts he authorised during the period of martial law
  • In Court, his actions were held as legal and the decision further upheld the rule of law
• What is a substantive approach to the rule of law?

  There is a substantive content to the law which the rule of law protects (e.g., democracy, rights and freedom)
• What did Lord Bingham understand as sub-rules?

  1. The law must be accessible and intelligible, clear and predictable.
  2. Questions of legal right and liability should be resolved by application of the law and not the exercise of discretion.
  3. The laws of the land should apply equally to all.
  4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
  5. The law must afford adequate protection of fundamental human rights.
• Why does Paul Craig prefer the formalistic approach?


  • The rule of law must have an independent function
  • Laws shouldn’t be condemned or upheld just because they contrary to, or conform to, a certain conception of rights, democracy and justice
  • The rule of law minimises the harm to freedom and dignity which the law may cause in its pursuit of its goals
  • The rule of law isn’t concerned with answering questions about the best way to run society - this is a matter for political and democratic debate
• What was the Anti-Terrorism, Crime and Security Act 2001?


  • An act that allowed the Home Secretary to certify any non-British citizen whom he suspected to be a terrorist and detain them indefinitely, pending deportation, even when it wasn’t possible to deport the individual
  • They were detained in Belmarsh Prison, a maximum security prison in East London
• What was the issue in A and others v Secretary of State for the Home Department [2004] UKHL 56


  The detainees argued that the ATSCA was incompatible with Article 5 and 14 of the ECHR
• What was the decision in A and others v Secretary of State for the Home Department [2004] UKHL 56

  • Eight of the nine Law lords ruled that the threat to the UK from international terrorism amounted to a public emergency threatening the life of the nation
  • Seven of the eight said it wasn't a proportionate response