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Rule of Law (A V Dicey - first modern writer to explain concept of RoL.…
Rule of Law
A V Dicey
- first modern writer to explain concept of RoL.
No man can be punished except for distinct breach of law
. This means people cannot be punished arbitarily and everyone is equal before the law which applies to everyone. Rights are determined by the judiciary rather than being derived from constitution.
(Molone v UK)
.
Equality before the law regardless of position in society
. The case of
R v Chaytor and others
illustartes that even officials of the state are subject to ordinary law administered in ordinary courts.
Rights are to be determined by judicial decisions rather than being drawn from constitution
. Judges must protect rights in absence of constitution. Third element regarded as being outdated as most countries have written constitution with Bill of rights - UK signed ECHR. Dicey failed to mention need for independent judiciary.
Joseph Raz
expanded on Dicey's description and wrote about meaning of RoL identifying 8 key elements with focus on law being prospective rather than retrospective. Also criticised that Dicey's theory of law being made according to established proceudres and administered in common courts does not prevent tyranny - requirement is for governments to operate under law.
F A Hayek
explored meaning of RoL in terms of economic development - saw RoL as essential to functioning of free market and enabled planning and investment to be carried out wiht knowledge that law was clear and predictable. He saw RoL as a vital constraint on power of state.
RoL regarded as a
fundamental principle that underpins our system of government.
Fundamental to democracy and protection of liberty especially in UK through unwritten constitution.
Concept closely linked to principles of judicial independence, neutrality and sep of powers.
No single agreed definition of meaning but growing national consensus as to its core meaning.
Term used in
Constitutional Reform Act 2005
that placed emphsasis on protection of RoL and judicial independence.
The meaning of the
Rule of Law
General meaning of rule by law rather than power - historic example of absolute rule by Monarch in England.
At its simplest the RoL means society and government must operate under the law, nobody is above the law in other words. Also, there should be equality before the law.
Montesquieu's
theory of sep or powers is seen as essential to RoL. Three branches of state should remain seperate and independent from eachother. This sep prevents one branch from operating above the law.
Bingham
- most recent and influencial writer on RoL.
He also illustrated importance of
judicial review
- power of judges to review actions and decisions of public bodies and officials - key aspect to RoL.
In his work
The Rule of Law
(2010) Bingham explained RoL in eight principles which placed emphasis on protection of human rights by law and international dimension to RoL.
Bingham placed emphasis on compliance with
international law
and stressed importance of law to protect human rights.