Law Society Rule

The question of the purpose of the rule of law and how the boundaries should be drawn between
moral judgement and the need to maintain a basic level of order within a society has been asked,
over the centuries, by many eminent theorists from the legal, political and philosophical world.
Several different opinions have emerged with varying degrees of agreement, with the concept that
the rule of law is the law and we must obey it, regardless of how unjust the rules may appear.
Although the exact meaning of the rule of law has been interpreted in different ways by the various
different theorists, the very basic principle that the rule of law means that no individual is above the
law seems to hold in all interpretations. In England, the prime example of the rule of law is the
Magna Carter in which King John agreed to abide by the feudal laws and the placing of limits on fees
relating to feudal land.
What is the Rule of Law?
Before considering whether or not the rule of law consists merely of a body of rules or whether there
is more to the way in which the rule of law is applied, it is first necessary to consider exactly what is
meant by the rule of law.
Dicey was not, in fact, responsible for the birth of the rule of law, but was instrumental in bringing it
into the public arena for debate and consideration. He contended that the rule of law was made up of
three key principles. Firstly, that an individual has the freedom to act in any way he so wishes
without punishment provided it is not in breach of any law. This gives supremacy to the rule of law
over any other arbitrary act of power that is not backed in law.
Secondly, that no one is above the law meaning that every subject, regardless of stature, can be
held accountable to the law and punished in the courts of the land. Thirdly, that the rule of law is
based on the collective rights of all individuals. Essentially, this means that the courts will enforce
individual rights on a collective basis to all subjects within its jurisdiction.
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This basic concept has been somewhat extended in recent years, most notably by Lord Bingham in
his lecture given on 16 November 2006 to Cambridge University where he put forward eight sub-
rules that should be seen as part of the overall rule of law. These were that firstly, the law should be
available and understandable to all it governs, based on the premise that if someone is to be
governed by a law they should be able to understand it fully.
Secondly, that when faced with the decision of liability or accountability, the law should be used
without so far as is possible the use of discretion. Thirdly, that the law in the way in which it is
applied should be equal and universal to all. He did, however, recognise that at times it would be
necessary for some individuals to be treated differently. Fourthly, that any law must provide a basic
level of protection for all fundamental human rights, to every subject, regardless of circumstances.
Fifthly, where there is a civil dispute that cannot be resolved, the parties should have access to cost
effective and efficient means of dealing with the dispute.
Sixthly, that all members of government or officers of the government should act in good faith when
carrying out their law enforcement duties and should not act outside of their individual powers.
Seventhly, that any adjudicative process should be fair and transparent in the way it arrives at
decisions. Finally, the state has to consider its obligations to international law when complying with
any national rule of law.
In essence, the rules laid out by L Bingham are not substantially different from those laid out by
Dicey; they are merely more detailed regarding the way in which the laws should be applied. This
offers greater guidance on the subject of what an individual should do when faced with a seemingly
unjust law. It also gives greater insight into the way in which the rule of law should be viewed,
generally, and applied in relation to other political, religious and moral frameworks.
Application of the Rule of Law
Having understood the basic principles of what the rule of law contains, it is then necessary to move
forward to consider how this applies and actually works, in practice, in relation to society as a whole.
Again, this area has drawn attention from some of the great legal theorists of all time and has, in
some cases, been hotly debated.
One of the fundamental ideas laid down by Dicey is that the government has no greater authority in
terms of the way in which it is viewed in the courts. The rule of law clearly indicates that the
government must have restraints and cannot simply act in any arbitrary way that it pleases.
This has been borne out in several court cases including the early case of Entick v Carrington where
it was held that the warrant a Home Secretary had issued to enter a privately owned property was
against the law and, therefore, the government was guilty of trespass.