Rule of Law

Question 1

What are the 3 key aspects of the Rule of Law given by Dicey?

Answer 1

1. All government actions must be authorised by law
2. No man is above the law, and everyone is equal before the law
3. The law is the result of previous judicial decisions determining the rights of the private person

Question 2

In What way did Jennings disagree with Dicey?

Answer 2

• He believed that rules were the source of our rights, not that our rights were the source of the law
• Equality before the law is flawed as people of different ages and capacities are treated differently

Question 3

What does TRS Allan believe about the Rule of Law and Parliamentary Sovereignty?

Answer 3

• Parliamentary Sovereignty is given life by democracy
• The Rule of Law is a procedural principle but would have to become substantive if Parliament legislated against democracy

Question 4

How does Lord Bingham extend Dicey’s Principle of the Rule of Law?

Answer 4

• He has a more content-rich, rather than facilitative approach to the Rule of Law
• ‘The law must provide adequate protections of fundamental rights’

Question 5

Why was Entick v Carrington [1765] important for the Rule of Law?

Answer 5

• It established the limits on executive power
• The state can only act lawfully in accordance with statute or the common law
• Lord Camden - ‘If it is law, it will be found in our books’

Question 6

Is the Rule of Law really supported by Parliamentary Sovereignty?

Answer 6

• No, according to Loughlin, legislation has been passed which has limited fundamental rights
• i.e. The Prevention of Terrorism Acts 1974 onwards

Question 7

Which Key Case shows how the Rule of Law is limited?

Answer 7

• Malone [1979] - a key failing of the Rule of Law as a tool for the protection of freedom
• The executive can do anything that is not prohibited by law

Question 8

What do Raz and Craig suggest?

Answer 8

• The rule of law should be a ‘thin’ concept and should relate to an impartial process
• It should not be associated with social or economic equality

Question 9

What are Dworkin’s 2 conceptions of the Rule of Law?

Answer 9

1. Rule-Book Conception: The power of government should only be used against citizens in accordance with the explicit rules set out
2. Rights Conception: Moral and Political rights must be recognised in a positive way so they can be enforced (substantive justice)

Question 10

Does the Rule of Law Oppose Parliamentary Sovereignty?

Answer 10

• No, according to Dicey;
  1. The courts interpret the will of Parliament to prevent Parliament from restricting personal liberty
• The Rule of Law works alongside Sovereignty of Parliament