This answer is based on the Rule of Law in UK being an uncertain concept. It elaborates Lord Bingham's eight points along with linking it to the the role of each institution and the relevant UK case law and judgements. Moreover, it provides an insight to the views of different authors and commentat...
Q) Discuss the claim that the rule of law is a complex and in some respects
uncertain concept.
Rule of law is a principle that focuses on assuring that government actions are not
unfettered and that there is a guideline that provides how governments are to
govern societies. It is a fundamental constitutional principle that forms an integral
foundation on which UK democratic constitution stands. However, as this covers a
considerable amount of jurisprudence it is impossible to attribute this concept a
precise definition that it is left as a topic of discussion over evening tea for the
elite
Over the years many commentators have made efforts to codify this concept and
to give it a single definition, but these efforts have been in vain because as the
preposition of the question invites to discuss, the concept may be complex and in
some respect uncertain. However there have been a few who have tried to grasp
and understand it by listing all the essential characteristics relating to law and
legal process that ought to exist in a good constitutional system to define rule of
law. On the flip side of the coin, others have assessed its importance and vastness
as complex and unclear; thus making the argument debatable.
Rule of Law is better understood by Lord Bingham’s eight points that summarize
all the essential components that must be present in a constitution, which aids us
to understand rule of law. He stated that in a good constitution law must be
accessible and so far as possible intelligent, clear and predictable. In the case of
Merker Island Shipping Corp v Loughton, Lord Donaldson stated that absence of
clarity is catastrophic to the rule of law; it is unfair to those who wish to preserve
the rule of law and it encourages those who wish to undermine it which shows
that the law must be clear in order to be understood. Along with this the question
of legal right and liability should be resolved by law not by use of discretionary
powers and that ministers and public officers at all levels must exercise their
powers in good faith, for the purpose given to them without exceeding their limits
unreasonably which ensures that there is no abuse of power within the system.
Similarly, the laws should apply equally to all and that adjudicative procedures
, provided by the state should be fair that ensure a just system that caters to all.
Moreover, one of Lord Bingham’s points also included the law to have adequate
protection of fundamental rights and that sources should be provided for
resolving matters without prohibitive cost or undue delay. In the case of R v Lord
Chancellor Law J stated that access to courts is a constitutional right; it can only
be denied by the government if it persuades Parliament to pass legislation which
permits the executives to turn people away from court. This emphasizes on
accessibility of courts as an essential characteristic. Furthermore, Lord Bingham
also included the rule of law to require compliance by the state to its
international duties in international law as in national law. Therefore, he
summarizes all the components that make up a good constitution to be referred
as the principle of rule of law, without which the constitution loses its essence
and stability. This showcases rule of law to be focused around a just and a fair
system that supports everyone equally.
However, as the question suggests, the rule of law is complex and uncertain. This
is mainly supported by the two forms of theory related to it that define the role
and nature of laws in a constitution that makes one wonder about the uncertainty
that each theory carries. One of the theory is the content free theory that is an
idea that focuses on the form of law and the procedures by which it is made. It
claims to be free of every element. It stresses on the idea that as long as the law is
made by a fair procedure then the content it carries does not matter. One of the
advocates of this theory, Joseph Raz, states that in rule of law, all laws should be
prospective, open and clear, they should be stable and the law making
procedures should be guided by open, stable, clear and general rules. Along with
this, the independence of the judiciary must be granted and the principles of
natural justice must be observed to ensure fairness. He also highlighted that
courts should have review powers, such as judicial review, over the
implementation of other principles and that as Bingham states these courts
should be accessible. He believed that rule of law focuses on how the law is made
to ensure that it is designed to minimize the harm to liberty and dignity which the
law may cause in pursuit of its goal no matter how admirable they may be. He
viewed rule of law to be an inherent excellence of the law, which means that it
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