1.2 Rule of Law Flashcards
(13 cards)
What is the rule of law in broad terms (3)
- No person shall be sanctioned except in accordance with the law
- All shall be equal before the law
- There shall be fairness and clarity of the law
The RoL is THEREFORE a safeguard against dictatorship
How is the rule of law a safeguard against dictatorship
- The government and its officials are accountable under the law
- No single branch of government can exercise unlimited power
- There are checks and balances, including an independent judiciary, to maintain these principles
What were Dicey’s 3 elements that he felt created the rule of law
- An absence of arbitrary power on the part of the state
- State’s power must be controlled by the law
- Can be challenged by judicial review
- Prevents the state from having wide discretionary powers with checks and balances - Equality before the law
- This is regardless of a person’s power
- Law deals with them the same way it would anyone else
- However this doesn’t take into account differences in wealth
- Real equality can only be achieved with some form of financial help from the state, for those needing to access justice - Supremacy of ordinary law
Academic view of von Hayek
- Followed Dicey’s principles but felt that the rule of law had been diluted because, provided actions of the state are permitted by an Act of Parliament, anything done in accordance with this Act is lawful
- Pointed out that regulating economic activity, as modern governments do, is in conflict with the rule of law
Academic view of Joseph Raz
Saw rule of law as acting to minimise the danger of the use of discretionary power in an arbitrary way
Some of his key principles are:
- There should be clear rules and procedures for making laws
- The independence of the judiciary must be guaranteed
- The principles of natural justice should be observed - these require an open and fair hearing with all parties being given opportunity to put their case
- Courts should have power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the rule of law
How does Parliament delegate its powers
- Pass an Act granting power to make regulations
- Parliament has powers to scrutinise and check those regulation
- Regulations can be challenged in the courts through judicial review, ensuring the secondary body has not gone beyond the powers granted by Parliament
How does criminal procedure comply with the rule of law (4)
- Every defendant has the right to a fair trial
- Independence of the judiciary guarantees freedom of judges from improper influence/interference
- Trial by peers (by magistrates or a jury) important to maintaining fairness and protecting citizens’ rights
- No person can be imprisoned without a trial (habeas corpus)
How does civil procedure comply with the rule of law (3)
- System should be free from discrimination and from corruption i.e. not improperly influenced by public officials
- System should be accessible and affordable
- In theory, everyone can resolve their disputes effectively through the civil justice system
What does the rule of law safeguard us against
Arbitrary power (dictatorship)
What impact can wealth have on equality before the law
- Can afford higher quality legal representation
- Can afford to pay fines more easily that would be crippling for lower income individuals
Give 3 reasons why judicial independence is important for the rule of law
- Helps maintain public confidence in the justice system
- Ensures fairness and impartiality
- Holds the government accountable and safeguards against dictatorship
What is the relationship between the rule of law and human rights
The rule of law serves as the foundation for upholding and protecting human rights
How does the rule of law place limitations on how judges deal with defendants who have been found guilty
- Judicial independence
- Impartiality
- Sentencing guidelines
- Transparency - decisions and judgements usually have to be made in public according to the Crown Prosecution Service
