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Rule of Law (Dicey 1885 (Equality before the law - the law should apply to…
Rule of Law
Dicey 1885
- No person can be punished except for a breach of the law and not arbitrary decisions made by persons without the legal authority to do so. The law must be clear, accessible, predictable and not retrospective. Cases must be heard before the ordinary courts - open to all.
- Equality before the law - the law should apply to all - no-one should be above the law. Those in authority must act within the law.
Modern example - Judicial review - the ability to challenge decisions and actions of public officials and public bodies. The courts are asked to rule on the legality / lawfulness of those decisions / actions. Example the Gina Miller case (Brexit Ruling).
- Judges protect the rights of citizens in the absence of a written constitution. Judges must determine whether rights have been breached. Today this is accepted as including the key principle of judicial independence.
Other theorists
Joseph Raz
Raz expands on the ROL concept e3mphasing that the ROL must also link to the content of laws not merely that society operates under laws. He identified 8 values or principles central to the ROL. He emphasised the need for law to be stable and also that there should not be retrospective laws.
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Bingham
Thomas Bingham (Lord Bingham) offers the most recent analysis and explanation of the ROL. He emphasises the need for respect and compliance withy international law (international obligations). As well as the law needing to be clear, predictable and accessible, he emphasises the need for respect for fundamental human rights
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the ROL requires that law is accessible and person have access to the courts; the ROL supports the right to a fair trial
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