Lecture notes
Lecture notes Law (LLB)
- Module
- (LLB)
- Institution
- University Of Winchester (UoW)
everything you will need in detail to do with the rule of law within public law
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the rule of law1. Constitutional principles
Constitutionalism
- Political concept that the government should govern according to the law, and is limited by the
law.
- Murkens suggests that constitutionalism means
- - concentration of power in one institution (parliamentary sovereignty)
- -government is organised by majority rule (representative government)
- -the exercise of power is controlled by constitutional principles, such as the rule of law and
separation of powers (limited government)
- - government is accountable to parliament (responsible government)
- -the exercise of power is controlled by constitutional principles, such as the rule of law and
separation of powers (limited government)
- -government is accountable to parliament (responsible government- political accountability)
- - government is held to account by an independent judiciary (responsible government- political
accountability)
Status of constitutional principles
Explanatory
- Help us make sense of the constitution
Practical
- Judges likely to interpret legislation according to existing constitutional principles;
- Politicians likely to act according to constitutional principles
- Legislation is intended to be enacted on the backdrop of existing principles
Evaluative
- Politicians (and judges) act and make decisions all the time. These decisions can be challenged or
questioned on various grounds.
- One basis for considering decisions or actions, is whether they accord constitutional principle.
- Blairs decision to go to war in Iraq in 2003 (in the eyes of some, an illegal war), could be show a
disregard for the ‘rule of law’
2. Introduction to the rule of law
- “it would not be very difficult to show that the phrase ‘the rule of law’ has become meaningless
thanks to ideological abuse and general over-use.” – Judith shklar, political thoughts and political
thinkers (university of Chicago press, 1998) 21
3. Formal conception of the rule of law
Basic principle of legality
- The rule of
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