rule of law Flashcards
what is the rule of law?
A theoretical concept that defines law. It suggests that law should be equally applied, administered and
enforced.
what does the rule of law support?
Safeguards against dictatorship
Supports democracy
No organ of government can exercise power unchecked
Separation of power- the people making the law should be the people enforcing the law!
how did Tony Honore describe the rule of law?
A governments powers are limited by law and citizens have a core of rights that the government are bound to uphold.
what were Tony Honores 3 rules regarding the rule of law?
- No person shall be sanctioned except in accordance with the law (criminal and civil)
- There is equality before the law, there must be no discrimination on any grounds
- There must be fairness and clarity to the law
what are Diceys 3 rules of law?
- an absence of arbitrary power on the state
- equality before the law
- supremacy of ordinary law
what does an absence of arbitrary power mean?
The states power must be controlled by the law. Government minister’s decisions can be challenged by Judges under judicial review
This avoids challenges being arbitrary
what does equality before the law mean?
No person is above the law. Those who carry out the functions of the state are also accountable for their actions
what does supremacy of ordinary law mean?
The law must be supreme, laws can only be made by parliament
what are the issues with Diceys law? (name 6)
Parliamentary supremacy- parliament can overrule any previous law or set aside any act of parliament.
• This contradicts Dicey’s idea of supremacy of law.
• Parliament has the right to make any law it wishes, this can be seen as
arbitrary.
• Parliament can also pass law making power to other people.
• Parliamentary law making cannot be challenged in court
• Not everyone is equal, it depends on your access to legal representation.
what did F A Von Hayek believe about the rule of law?
• Absence of arbitrary power in the state
• The rule of law has become weaker:
The modern state is involved in regulating economic actions Any act supported by legislation is lawful
Joseph Raz’s rule of law?
ROL is about controlling discretion rather than preventing it. ROL minimised the danger of arbitrary acts
Law should be capable of guiding people’s behaviour
• Clear procedure for law making
• Judiciary must be independent
• Principles of natural justice should be observed (open and fair
hearing)
• The courts should have the power to review the way principles are implemented
what is the constitutional reform act 2005?
s1
This act does not adversely affect
a. The existing constitutional principle of law; or
b. The Lord Chancellors’ existing constitutional role in relation to the state
s3(1)
The Lord Chancellor, other ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary
why is the ROL so important?
The party with the majority are most likely to get their own laws passed.
• Laws are checked by the opposing house to ensure openness and fairness
• E.g. the HOL has consistently voted against the changes to the law that allows Crown Court trials without a jury
• Statutory instruments (delegated legislation made by government departments) do not always have to be considered by parliament, so several checks are placed on them.
How does the ROL work within the legal system?
Every criminal defendant is entitled to a fair trial
• Trial by jury- maintains fairness and citizens’ rights
• No person can be imprisoned without a trial
• The criminal justice system should be free from discrimination
• It should also be free from corruption and not influence by public officials
• The CJS should be accessible and affordable
what is substantive law?
law that creates or defines rights, duties, obligations, and causes of action that can be enforced by law
