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Legal Accountability Lecture Notes
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Public Law, Legal Accountability
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Introduction.Legal accountability is based on two basic principles:
- The rule of law.
- The separation of powers.
These two legal principles are based on the ideology of parliament – they are aspirations.
It is accepted that both principles are good things and should be strived towards.
Different legal sources can be evaluated using these two principles – e.g., a piece of legislation is bad
because it does not comply with the separation of powers.
, What is the rule of law?
The rule of law can be contrasted with the rule of man – dictatorships with certain individuals above the
law rather than everybody in a nation being controlled with the rule of law.
The rule of law can be contrasted with premodern societies – where society had trials and dictatorships
but did not have a legal system with any meaningful sense of the rule of law.
The rule of law can be contrasted with future ideas – e.g., the increasing idea of police abolition
(anarchist ideas which may not comply with the rule of law).
Defining the Rule of Law:
“All persons and authorities within the state, whether public or private, should be bound by and entitled
to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in
the courts” – Bingham, The Rule of Law (Penguin, 2011).
- The law must be applied to everybody (parliament, monarchy, society).
- The rule of law is a contested concept, definitions come in the form of competing lists – it is a very
broad concept, there is not much agreement on definition.
Dicey’s (flawed) Rule of Law:
1) Exclusion of wide discretionary power.
2) Equality before the law in ordinary courts.
3) The common law as the basis for rights and liberties of the individual.
A.V. Dicey, Introduction to the Study of the Law of the Constitution (Macmillan 1915).
- His main goal of this list was to stop the government exercising discretionary power to control
markets; therefore, his definition is very bias.
- It is also a bad definition because he states that the government has too much discretionary power
overall – e.g., the creation of the NHS was a breach of discretionary power of the government, they
had too much power to create such a thing therefore should be investigated.
- He is comparing the ELS to the French legal system – a written constitution is bad for a nation.
Fuller: Law must be… L. Fuller, The Morality of Law (YUP, 1977).
- General (must be applied to all).
- Made public
- Prospective
- Understandable (must be clear)
- Not contradictory
- Possible to comply with
- Stable and constant through time (not changing everyday)
- Applied and enforced.
A better definition than Dicey’s, it highlights factors that create a fair and equal rule of law.
Adding to the list of definition:
Rule of law requires recognition of moral and political rights – R. Dworkin, A Matter of Principle
(Harvard, 1985). – human rights are essential in a rule of law.
Rule of law requires that people are ‘treated with the respect that their equal dignity as citizens
demands’ – T.R.S Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: OUP, 2001).
- Could be considered that a rule of law is getting broader as there is involvement of ‘less important
elements’ of what the rule of law requires.
- The issue is that once the rule of law begins to get too inclusive, the concept risks becoming
meaningless altogether.
Key Distinction:
, Formal/Thin Rule of Law = Fuller.
- Making sure that the law is understandable.
- Making sure that the law is stable.
- Focuses on what the legal system must look like, not the substance of the law.
- The issue is, the substance could be very oppressive even if all these rules are followed on how it
should look.
Substantive/Thick Rule of Law = Dworkin, Allan.
- There must be procedural rules of legal system, whilst protecting human rights.
- The law must be substantively complying with rights and dignity.
Bingham’s Definition – The Rule of Law (Penguin, 2011).
o The law must be accessible and so far, as possible intelligible, clear and predictable.
o Questions of legal right and liability should ordinarily be resolved by application of the law and
not the exercise of discretion.
o The laws of the land should apply equally to all, save to the extent that objective differences
justify differentiation.
o The law must afford adequate protection of fundamental human rights.
o Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide
civil disputes which the parties themselves are unable to resolve.
o Ministers and public officers at all levels must exercise the powers conferred on them
reasonably, in good faith, for the purposes for which the powers were conferred and without
exceeding the limits of such powers (“the core of the rule of law principle”).
o Adjudicative procedures provided by the state should be fair.
o Compliance by the state with its obligations in international law.
What society must do to comply with the rule of law.
He focuses on discretion – there is a limit on this (unlike Dicey).
His definition seems to take into account a thick rule of law ideology (more substantive than procedural
rule of law).
The law must limit the power of those who exercise public power.
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