Public resit

Question 1

Give two reasons why the Rule of Law matter?

Answer 1

1. it is recognized as an important constitutional principle in the constitutional reform act 2005
   > It states that the ‘act does not adversely affect the existing constitutional principle of the rule of law’
2. It is often cited as an important constitutional principle by the courts.

Question 2

How does J.Finnis define the rule of law?

Answer 2

The rule of law is ‘the name commonly given to the state of affairs in which a legal system is legally in good shape’

Question 3

How does A.V.Dicey define the rule of law?

Answer 3

The Rule of Law means:
>the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power
>It means equality before the law or the equal subjection of all to the law

Question 4

What is the meaning of arbitrary power?

Answer 4

Exercising power based on individual discretion rather than a fair application of the law
Power that has no limit and cannot be restricted or overturned

Question 5

What type of system does the rule of law require?

Answer 5

• A system where everyone, including the government, is effectively bound by law
• a system where no-one, including the government, has unlimited/unconstrained power (i.e. arbitrary power)

no one especially the government is above the law

Question 6

What are the two approaches/theories for ensuring the rule of law is being upheld?

Answer 6

> Formal theory
Substantive theory

Question 7

Explain the basis of the formal theory

Answer 7

Form literally means ‘structure’ or shape’
> The ‘form’ of law is the law’s structure and procedures
> The ‘form’ of law relates to the ways in which law is made, presented, and applied.
> Formal theories say the rule of law is being upheld

When the law is made, presented, and applied in the right way.

Question 8

Explain the basis of the substantive theory

Answer 8

Substance is ‘content’
> The actions the law requires us to do/not to do
> The protections the law provides/fails to provide
> The punishments/penalties the law imposes

Substantive theories say the rule of law is upheld only if the content is good/just.

Question 9

How is the rule of law criticised?

Answer 9

Theories of legal concepts help us make sense of how legal rules operate and give us an idea to access and critique legal systems.

Question 10

Take a look back at the ship analogy of the theories

Question 11

Summarise the Formal theories

Answer 11

> Its focus is on form & procedure: the way law is made, presented, and applied.
In applying the formal theory the rule of law doesn’t require the law’s content to be morally good.

Question 12

Summarise the substantive theories

Answer 12

> Agrees with the formal principles set out in formal theories
Additionally think the rule of law requires the law’s content to be morally good

Question 13

What do principles 1-3 of Joseph Raz’s formal theory require?

Answer 13

“Principles 1-3 require that the law should conform to standards designed to enable it effectively in direct action.”

Question 14

What are principles 4-8 of Joseph Raz’s formal theory designed to ensure?

Answer 14

“Principles 4-8 are designed to ensure that the legal machinery of enforcing the law should not deprive it of its ability to guide through distorted enforcement”

Question 15

What’s the difference between Lord Bingham’s and Raz’s principles and why is it different?

Answer 15

> Bingham’s principles largely overlap with Raz’s
However a major difference in Bingham’s theory is his 4th principle
His 4th principle is about the substance of the law, not its form

Question 16

What is Lord Bingham’s 4th principle?

Answer 16

“The law must afford adequate protection of fundamental Human Rights.”

Question 17

Why does Lord Bingham take the substantive view?

Answer 17

He adds an element of morality to the debate, stating that if there isn’t an assessment of the substance of the law then systems like South Africa and Germany would be passed as following the Rule of law. As they technically would be following the formal theory of the rule of law.

Question 18

The debate about the Human Rights principle in Bingham’s theory

Answer 18

Does Human rights need to be a part of the rule of law to be protected?
There are other mechanisms that protect Human rights. e.g. the Human Rights Act applied here in the Uk

Question 19

Why does Raz disagree with the need to assess the substance of the law?

Answer 19

Raz believes the best thing to do is to regard Human Rights as one thing and the rule of law as another thing. To separate them.

Question 20

Why does Raz believe we should keep the rule of law separate from things such as Human Rights?

Answer 20

He believes that having separate labels, like the rule of law, justice, etc. is good as they each mean different things.
He says that not only is the substantive theory unclear, but it also risks obscuring the distinctive value of the formal rule of law

Question 21

Which theory do the courts endorse?

Answer 21

• UK Courts uphold formal rule of law principles in various ways (

But…
- The fact courts consistently uphold formal Rule of Law principles does not necessarily mean they support a formal theory of the Rule of Law…

Why?
- Because substantive theories of the Rule of Law also require respect for formal principles.
So, we need to ask another question…

Have the courts endorsed the substantive theory?
Short answer: YES (at least occasionally)

Question 22

In what case do the courts address the formal and substantive theories?

Answer 22

“Our conception of the rule of law has been increasingly substantive rather than merely formal or procedural […] The courts have a special responsibility in the field of human rights.”

R (Al-Rawi and Others) v Secretary of State for Foreign and Commonwealth Affairs [2006]

Question 23

What is the meaning of Executive power?

Answer 23

• The Executive – especially the government – is empowered to make decisions and pass secondary legislation.
• It uses these powers to run the country and conduct foreign affairs.

Question 24

Executive powers derive from two main sources:

Answer 24

> Statute (Acts of Parliament)
Royal prerogative

Question 25

What is one of the biggest threats to the rule of law?

Answer 25

Executive power

Question 26

How are statutory powers awarded?

Answer 26

Statutory powers are conferred on members of the executive by Acts of Parliament

Question 27

How do acts of parliament award power?

Answer 27

An act will set out:
> Who the power can be used by
> What the power is for
> and any limits on the power