An excellent bundle which includes notes and the key cases in Constitutional/Administrative Law. Suitable for revision notes and for examination/assignment preparation.
AV Dicey said that the rule of law means three things;
1. Supremacy of law over arbitrary and wide discretonary power
2. Equal subjecton to the law
3. Origins of consttutonal law in private law
Dicey’s views are stll highly infuental and are supported by judges in decided cases. In R v
Rimmington (2006) Lord Bingham said that conduct forbidden by law should be clearly
indicated so that a person is capable of knowing that it is wrong before he does it and that
nobody should be punished for doing something which was not a criminal ofence when it was
done.
Other views about what the rule of law means
There is a variety of views on the meaning of the rule of law.
Von Hayick argued that the role of the state should be to maintain the rule of law with as litle
arbitrary interventon as possible. The followers of this would argue, for example, that it is
wrong for the government to natonalise industries, or regulate the banks and other businesses.
Sir Ivor Jennings critcised Dicey’s views saying that his preference for liberty, certainty, and the
limitaton of discretonary power was inconsistent with twenteth-century ideas of social justce
which involved the extension of discretonary powers. Jennings identied the following key
features of a legal system based on the rule of law;
The state as a whole must be regulated by law
There must be an implicit separaton of powers. Police powers must be clearly deined
There must be clear general rues interpreted and applied by the courts. Criminal
statutes must be applied strictly
Equality and liberty are also essental features of the rule of law
Joseph Raz identied several principles which may be associated with the rule of law in some
societes. His principles focus on guiding an individual’s behaviour and minimising the dangers
associated with the exercise of arbitrary and discretonary power. Some of Raz’s principles are;
Laws should be prospectve rather than retroactve
Laws should be stable and not changed too frequently
There should be clear rules and procedures for making laws
The independence of the judiciary has to be guaranteed
The courts should be accessible; no man may be denied justce
The discreton of law enforcement and crime preventon agencies should not be allowed
to pervert the law
1
, Public Law
Lord Bingham based his views about the rule of law on three key assumptons;
Everyone should be equally bound by and enttled to the beneit of the law
Laws must be publicly and prospectvely published
Laws should be publicly administered in the courts
Exam tp* Some essay type questons will ask you to compare and contrast diferent views
about what the rule of law means.
The key features of a legal system based on the rule of law
The key feature of any legal system based on Dicey’s concepton of the rule of law is that
government must be conducted according to law. This is primarily based on the key
consttutonal principle applied by the court in Entck v aarrington (166)).
Entck v aarrington (166)) – The court had to decide whether natonal security could be raised
as a defence to an acton in trespass to land and property. The executve can do nothing
without legal authority. Where a public authority claims to have the power to do something it
must be able to identfy the precise legal source of its powers.
Public bodies exercising statutory dutes must do what the statute requires them to do as was
held in Stroud v Bradbury (19)2).
The judiciary enforces the law against individuals, insttutons, and the executve. Judges cannot
enforce the law against the monarch because the monarch can do no wrong, but judges enforce
the law against the executve and against the individuals who represent the executve
To enforce the law the courts have the power to grant remedies against a minister in his ofcial
capacity. If a minister has personally broken the law, the litgant can sue the minister in his
personal capacity.
The role of the courts is to make sure that powers are lawfully exercised by those to whom they
are entrusted, not to take those powers into their own hands and exercise them afresh.
The other key features of a legal system based on the rule of law
The following assertons have been made by judges concerning the key features of a legal
system based on the rule of law;
A decision to punish an ofender by imprisonment may only be made by a court of law (R
v Secretary of State for the Home Department (2003))
Civil rights must be determined by an independent and impartal judicial system
(Mathews v Ministry of Defence (2003))
The executve should not arbitrarily be able to instruct the court to dismiss a claimants
acton (Mathews v Ministry of Defence (2003))
Judges preserve the rule of law. Common law rules governing access to the judicial
system and judicial review form the cornerstone of the rule of law. Judges must
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