Rule of Law

Substantive Implications

Legal effect by influencing the interpretation of legislation: courts will construe legislation in line with the rule of law.

Determines the validity of government action and legislation enacted by lawmaking bodies.

Legality

If something is to be regarded as law, it must be enacted in whatever way the relevant legal system prescribes.

Morally neutral

Whatever the content of the law, as long as it is approved by the necessary institutions and passed in a prescribed way - it will adhere to the rule of law.

Formal Conceptions

Bare principle of legality is merely a component. Formal Conceptions adds another layer to it.

Not only must law pass through the prescribed institutions and methods of legally passing a law, but it must abide by certain characteristics.

Joseph Raz 🚩

R v Anufrijeva 🚩

A V Dicey

Identified 3 meanings to the Rule of Law

The absolute supremacy of regular law,

Equality before the Law

as opposed to the influence of arbitrary power.

Equality before the law.

Equal subjection of all classes to the ordinary law.

M v Home Office 🚩

Home Secretary found to be in-contempt of the court after ignoring a court order.

The Courts uphold the rule of Law

Individual rights are to be protected by the courts, and not by laws passed by politicians.

Entick v Carrington 🚩

Substantive Conception

The law should contain certain fundamental moral content.

Law, by its very nature, should respect and fulfill your human rights

Criticisms

Jennings:

Existence of discretionary power

It is, in reality, a very real, necessary, and important power of government. Ministerial discretion is a vital process of government, and if it did not exist, the system would grind to a halt.

Equality before the law

Not everyone is equal before the law (i.e. the Queen is immune from prosecution, special powers of the Police, tax collectors). Children not treated the same as adults in criminal law, foreign diplomats enjoy diplomatic immunity, judges cannot be sued in the way the dealt with a case, and MP's cannot be sued for defamation in respect to things said whilst within the precincts of Westminster.


Lon Fuller 🚩

Generality: All laws will be universal and general, they apply to everyone.

Laws must be promulgated (published)

No retro-active laws

Clarity: laws must be clear

No contradiction: no laws can contradict each other.

Laws cannot require the impossible.

Constancy through time, laws must not change every day.

Congruence between official actions and declared rule: proportionate to the seriousness or nature of the rule.