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The Rule of Law
Fichas del conjunto (15)
- 1Formal ConceptionEnsuring that the proper procedure has been gone through. Raz's 'content-free' version of the law.
- 2Substantive ConceptionConcerned with rights and the way they have an impact on legal decisions. 'Content-rich' version of the law.
- 3Dicey's 3 part conception1) No man is punishable except in breach of the law; 2) Every man is equal under the law; 3) The constitution is pervaded by the rule of law, as its general principles are the result of judicial decisions.
- 4Protection of the rule of law: The JudiciaryProtected by common law principles: 1) common law fundamental rights; 2) law of tort; 3) statutory interpretation in ways supporting the rule of law.
- 5Protection of the rule of law: Judicial ReviewIllegality, irrationality and procedural impropriety
- 6Protection of the rule of law: The Constitutional Reform Act 2005S.1(a) - The Act does not adversely affect the existing constitutional principle of the rule of law.
- 7Criticisms: Sir Ivor Jennings1) 'The absence of arbitrary and discretionary powers' was corrected by Jennings as 'wide administrative or executive powers which are likely to be abused so ought not to be conferred'. Argument that socially progressive goals were of no interest to Dicey.
- 8Criticisms: Jennings2) Jennings denies that there is any equality between officials and ordinary people and states that Dicey only writes about the position in tort law, not public law. He also argues that this is too small a point to base the rule of law on.
- 9Criticisms: Jennings3) Questions Dicey's third point concerning judicial decisions being the source of constitutional principles. Argues that "both powers and rights come from the law- from the rules."
- 10Criticisms: Professor John Griffith- Nobody suggests that the law should be disposed with.
- The rule of law is invaluable to those who do not wish to change the present set up of the law.
- Statutes may contrary to the rule of law but it seems that common law never is.
- "Only and outlaw could dispute its desirability."
- "Invented by the Liberals and patented by the Tories" in order to protect certain institutions they wished to preserve. - 11Criticisms: Martin Loughlin- the goal of achieving a government of laws and not of men is "incapable of realization". Law is acknowledged as a human creation, so cannot be placed above human will, thus not above a government of men.
- laws cannot rule as 'to rule' involves action and laws do not act. Rule of law is merely rhetorical and has multiple, unprecise meanings. Its formulation is "entirely unworkable in practice". - 12Entick v CarringtonInvasion of Entick's house declared unlawful and counted as trespass. D's could not show a lawful reason to do so. Example of common law protecting rights through tort law.
- 13Malone v MPCPhone tapping was held to be lawful as there was no trespass onto property. Example of how the common law is limited in protecting rights. Malone appealed to ECHR which altered the law on phone tapping, so the Home Secretary can only permit it in certain instances.
- 14PiersonHome Secretary decided that Pierson's sentence should be 15 years, but later changed it to 20 years. This was held to be unlawful and the Criminal Justice Act 1991 did not give him the power to change decisions retrospectively. Example of statutory interpretation protecting the rule of law.
- 15R v DavisJudge allowed witnesses to be anonymous and Davis was convicted. D appealed on the grounds that he had not had a fair trial. It was held that the judge did not have power to grant an anonymity order as it infringed a common law right. Example of court's role being limited by common law right.
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- Fichas sobre The Rule of Law, creado por mgj1g14 el 11/05/2015.
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- mgj1g14
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