The Rule of Law Flashcards
what is the rule of law?
main principle: all people are subject to and accountable to law that is fairly applied and enforced
a safeguard against dictatorship, it supports democracy as govt is accountable under law
concept of rule of law
- no person shall be sanctioned unless in accordance with the law
- there is equality before the law, no discrimination on any grounds
- must be fairness and clarity of law
Dicey’s 3 elements
- an absence of arbitrary power on the part of the state
- equality before the law
- supremacy of ordinary law
problems with Dicey’s veiw
conflicts with another fundamental principle, of parliamentary supremacy, that an act of parliament can overrule any other law
parliament has the right to make any law it wishes, including giving arbitrary power to state
equality in Dicey’s theory refers to formal equality, ignores differences in wealth, power and connections e.g. cost of taking case to court is very high.
Hayek’s view
agreed that key component of ROL is absence of arbitrary power on part of state.
however, thought that ROL had become weaker as provided actions where authorised by legislation, any act is lawful
the modern state is also involved in regulating economic activity- conflicts with ROL
Joseph Raz’s view
recognised ROL was way of controlling discretion rather than preventing it.
He saw it as negative, acting to minimise danger of use of discretionary power
key point from ROL is law must be capable of guiding individual’s behaviour.
security of tenure of superior judges
they cannot be dismissed by govt, can only be removed by monarch following petition presented by both houses.
gives judges protection from political whims, allows them to be independent in their judgement
tenure of inferior judges
lord chancellor with consent from lord chief justice has power to dismiss judges for incapacity or misbehaviour
immunity from suit
immunity from prosecution for any acts they carry out in performance of their judicial function.
immunity from being sued in a civil case for actions taken in their decision making.
Sirros v Moore
also from being sued for defamation
this allows judges to perform duties without fear of repercussions=independence
independence from executive
cannot be dismissed by govt =independent of govt
advantages of judicial independence
decisions made only on basis of fact of case and law.
ensures fairness in all cases
judiciary able to protect citizens against unlawful acts of govt. = impartiality
public have confidence in judicial system, know cases will be decided fairly.
