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Chapter 2: The Rule of Law (2.5 The rule of law and substantive law…
Chapter 2: The Rule of Law
2.1 Concepts of the rule of law
Main principle is that all people are subject to and accountable to the law that is fairly applied and enforced.
The rule of law is a safeguard against Dictatorship.
Principles:
No person shall be sanctioned except in accordance with the law: this is in both civil and criminal cases.
There is equality before the law: thee must be no discrimination on any ground.
There must be fairness and clarity of the law.
2.4 The rule of law and the legal system
One of the most important points is that every defendant in criminal cases must have a fair trial
Trial by Jury is seen as an important factor in maintaining fairness and protecting fairness and protecting citizens' rights.
No person can be imprisoned without trial.
The civil justice system should be accessible and affordable, however there are many people who cannot afford to take a case to court as the prices have increased.
2.3 The rule of law and law making
Acts of Parliament have to be passed through both Houses of Parliament.
The House of Lords excersises a check on the law-making process
One area where the house of lords has consistently voted against change in the law has been in relation to allowing trials in the crown court without a jury.
2.2 Academic views
Dicey thought that the rule of law was an important feature that distinguished English law from any other.
An absence of arbitrary power of the state
the states power must be controlled by the law
One main aim of the rule of law is to avoid the state having wide discretionary powers.
Arbitrary should be removed to be able to comply with the law.
Everyone must be equal before the law
No person is above the law it doesn't matter how rich or powerful they are.
Supremacy of ordinary law
In the time of dicey's decisions were made through judges instead of through parliament.
Today most laws are through legislation, though judicial decisions do still create law.
2.2.2 Problems with Dicey's views
It conflicts with other fundamental principles that of parliamentary supremacy
The concept holds that an act of parliament can overrule any other law and that no other body has the right to override or set aside an act of parliament.
The rule of no arbitrary power on behalf of the state means that it shouldn't happen, yet under parliamentary supremacy parliament has the right to make any law.
it disregards the differences between people in terms of wealth power and connections. however there isn't real equality
going to court can cost a lot so people who are wealthy can afford it however giving equality to poorer people cant happen as they cant afford the same levelled lawyer that the opposition have
2.5 The rule of law and substantive law
substantive means the law in the different areas of law.
There is a substantive law of criminal law which sets out the definitions of the various criminal offences
There is a substantive law of tort which sets out what rights and responsibilities people owe to each other in everyday life.
the substantive law of contract lays down the rules on such issues as when a contact is formed, what everts may make that contract void or what will breach the contract.
The substantive law of human rights sets out various rights that individuals are entitled to expect.
all offences have a stated maximum penalty and courts cannot impose a higher penalty
in most cases the maximum penalty is not imposed and is lower
a problem is that public funding for making claims in a tort court can't happen anymore
This means even though everyone has the right to claim in court this cant happen anymore because of financial problems.
The Consumers Protection Act 1987 gives the consumers wider rights if they are injured or their property ahs been damaged by faulty goods. there are also statutory rights set out for the consumer so the product must be fit for its purpose and be good quality.