rule of law Flashcards
(21 cards)
dicey finishing critique
- Although Dicey’s doctrine introduces core values, its lack of engagement with modern legal developments undermines its ability to offer sufficiently certain or comprehensive guidance in contemporary constitutional adjudication.
rendering it an inadequate framework for understanding the role the rule of law plays in contemporary UK public law.
problems with dicey’s pillars
- equality and legality shot down - too idealisitic and too narrow to be a reliable guiding principle without moral content.As Jennings observed, Dicey ignored the reality that equality before the law is often illusory in practice. there can always be oppressive laws — Laws such as the DORA during World War I, though universally applicable, granted the state oppressive powers that curtailed basic freedoms. These illustrate how legal uniformity can coexist with systemic injustice, undermining Dicey’s assumption that equality before the law is inherently just.
- common law shot down - These ideas were reflected in cases like Cheney v Conn [1968], where the court upheld the primacy of statute
- codification hate short down - his dismissal of written constitutions and human rights protections makes his conception less useful in a system now shaped by instruments like the Human Rights Act 1998.
explaining A.V. Dicey beginning
- ancient idea - aristotle magna carta standing forever.
- The rule of law’s foundational status is uncontested, but its capacity to function as a guiding principle today depends on recognising the limitations of Dicey’s formulation and embracing more expansive, modern interpretations.
- his three pillars: legality, equality, common law
- that individuals should only be punished in accordance with the law (legality), that all persons are equal before the law (equality), and that individual rights are best protected through judicial decisions rather than codified texts. (common law)
- Outdated, classical, and ambiguous viewpoint
- too inattentive to rights and administration
A.V. Dicey ROL
need for evolution
Aristotle Magna Carta -> → 3 pillars-> oudated → critics(jennings, dora, cheney v conn, hra 1998) -> inadequate for modern
sedley quote on ROL
- Lord Justice Sedley:“Everyone believes in the rule of law, but no one agrees what it means.”
ROL definition
Definition - The rule of law, although inherently contested, broadly caters to the principle of justice- that the government must act lawfully, and individuals are entitled to legal protection and fair treatment - concerning the substance of the relationship between
citizens and government, and deals with the processes through which that
relationship is conducted
imp of questioning rol
- Importance - This principle is particularly vital in the context of the United Kingdom’s uncodified constitution,
- Affirmed in cases like UNISON and theorised by Lord Bingham, the absence of a single written document elevates the rule of law as a fundamental mechanism and underpins the uncodified constitutional principles by ensuring legality, fairness, and accountability.
thesis rol
- Thesis - Although the rule of law is abstract and debated in scope, its evolving doctrine plays a fundamental role in guiding UK constitutional law by limiting state power, protecting rights, and supporting judicial oversight, particularly in the absence of codified constraints.
intro rol
sedley -> definitions -> why -> thesis
- Lord Justice Sedley:“Everyone believes in the rule of law, but no one agrees what it means.”
- Definition - The rule of law, although inherently contested, broadly caters to the principle of justice- that the government must act lawfully, and individuals are entitled to legal protection and fair treatment - concerning the substance of the relationship between
citizens and government, and deals with the processes through which that
relationship is conducted - Importance - This principle is particularly vital in the context of the United Kingdom’s uncodified constitution,
- Affirmed in cases like UNISON and theorised by Lord Bingham, the absence of a single written document elevates the rule of law as a fundamental mechanism and underpins the uncodified constitutional principles by ensuring legality, fairness, and accountability.
- Thesis - Although the rule of law is abstract and debated in scope, its evolving doctrine plays a fundamental role in guiding UK constitutional law by limiting state power, protecting rights, and supporting judicial oversight, particularly in the absence of codified constraints.
rol flexibility raz v bingham
evolving dynamic — raz fixed predictable independent content free no equality removes ambiguity but doesnt align with constitutional principles
bingham – expands dicey can give judges more power tho –sir jowell supports i support example ghaidan v godin-mendoza
overall what it shows
what does raz v bingham say for rol
showcases importance, alive, felxibility
- The tension between these two schools of thought reflects the broader debate over whether the rule of law should remain a neutral procedural standard or evolve into a more value-laden, rights-oriented constitutional doctrine.
- This debate underscores why the rule of law remains conceptually contested — yet also why it remains such a rich and powerful guiding principle in constitutional practice
rol foundational
Although the meaning of the rule of law has been dynamic, both case law and statute display the foundational and enduring relevance of it for the smooth functioning of the UK constitutional government.
4 AUTHORITY - jackson unison sedley cra 2005
Thus, the rule of law emerges not merely as a political ideal, but as a constitutional cornerstone underpinning government operations.
rol foundational 4 authorities
In Jackson [2005], the court made bold obiter dicta regarding the rule of law is made, describing it as the “ultimate controlling factor on which our constitution is based”.
UNISON [2017[ further establishes this elevated position of the rule of law by holding that no executive power may undermine fundamental rights and constitutional principles — foremost amongst them is the rule of law.
This supports Lord Sedley’s observation that, despite its ambiguous meaning, no one disputes the importance of the rule of law.
The Constitutional Reform Act 2005 reinforces this, with section 1 affirming that nothing in the Act undermines the rule of law, and section 17 placing a duty on the Lord Chancellor to uphold it.
rule of law practical + accountability
. Rule of Law defines Judicial Practice and Government Accountability
- The continued constitutional relevance revealed above is most clearly showcased through its practical application by the courts, particularly in the domains of statutory interpretation and judicial review.
- Beyond theory, the rule of law plays a central role in judicial interpretation and statutory application.
Case / Statute What it Proves Redundant?
Entick Executive accountability / origin of legality ❌ No
Pierson Parliament must be clear to override rights ❌ No
HRA 1998 (s.3) Judicial duty to protect rights through law ❌ No
UNISON Enforcement of rights through judicial review ❌ No
Through the principle of legality and interpretive restraint, it is illustrated that the the rule of law is not merely an abstract ideal but a living principle, operationalised through judicial review to ensure that government action remains legally accountable and rights-respecting.
rol practical 1.
- At the heart of this practical application lies the principle of legality — the idea that public authorities, including the executive, must not interfere with individual rights without clear legal authority.
- This principle was famously affirmed in Entick v Carrington, where the court held that executive agents had no lawful authority to enter and seize property without statutory basis. The judgment established a foundational limit on executive power: “If it is law, it will be found in our books. If it is not to be found there, it is not law.”
rol practical 2.
- Furthermore, Parliament is not presumed to legislate contrary to fundamental rights without express wording.
- Court reinfroced, In R v Secretary of State for the Home Department, ex parte Pierson [1997], the House of Lords affirmed this presumption, compelling statutory clarity where core liberties are concerned.
rol pratical 3.
This principle has taken on new constitutional significance under the Human Rights Act 1998, which mandates that courts interpret legislation compatibly with Convention rights “so far as possible” (s.3).
The judiciary thereby acts as an active guardian of legality, ensuring that public power is exercised within lawful limits and aligned with human rights standards.
rol practical 4.
Practical - Perhaps the most striking example of the rule of law in practice is the Supreme Court’s decision in R (UNISON) v Lord Chancellor [2017]. There, the Court struck down employment tribunal fees on the basis that they unlawfully restricted access to justice, a core component of the rule of law. Lord Reed emphasised that laws which prevent individuals from enforcing their rights are themselves inconsistent with the rule of law.
rol conclusion
- In sum, while the rule of law may be conceptually abstract and the subject of ongoing theoretical debate, its practical enforcement and judicial application ensure that it remains a powerful and functional guiding principle in UK constitutional law.
- From its foundational role in statutory interpretation and judicial review to its embodiment in landmark decisions such as UNISON, the doctrine continues to shape how power is exercised and constrained within the state. Admittedly, tensions persist — particularly due to the UK’s uncodified constitution and the continued supremacy of Parliament — yet the judiciary’s increasingly active role in upholding legality, fairness, and rights illustrates the rule of law operating in action rather than in theory alone.
- In a constitution defined by its adaptability, the rule of law remains its most enduring and essential constant.
- In an age of rising executive power, political polarisation, and democratic uncertainty, the rule of law remains a vital constitutional compass — ensuring that governance in the UK stays anchored in legality, accountability, and rights, even without the security of a written constitution.
rol crituqes overview
vagueness (acknowledged by AG 2023, no official definition but officially told to apply) → judicial discretion → neglected by parliament (miller no. 2)
Yet, paradoxically, the very ambiguity that draws criticism also accounts for the rule of law’s enduring relevance. In a legal system without a codified constitution, its flexible, evolving character allows it to adapt to changing democratic values, while still offering a very nuanced, principled framework for limiting state power and playing the role of a modern, dynamic constitution. Far from being a weakness, this dynamic quality may be precisely what gives the rule of law its constitutional strength in a modern, pluralistic democracy.
rol criques content
- Despite its widespread acceptance, the rule of law has been repeatedly criticised for its conceptual vagueness and variable application.
- Diff interprtation Even the Attorney General (2023) acknowledged the ongoing tension between narrow procedural and broad substantive definitions, each carrying different implications for constitutional interpretation.
- no one knows which - none officially established but asked to follow officially This ambiguity has led some scholars and practitioners to question whether the doctrine is too indeterminate to serve as a reliable legal standard. - invites judicial discretion, allowing courts to impose contested moral values under the guise of constitutional principle - bingham’s principles judicial overreach
- neglected by parliamentary sovereignty - Miller (No. 2) [2019], although t Prime Minister’s prorogation of Parliament was unlawful, not based on a direct application of the rule of law, but accountability and justiciability .
