THE RULE OF LAW

RULE OF LAW
• The concept is by no means straightforward
and opinions vary as to its true meaning.
• It means different things to different people.
• Generally seen as a characteristic of western
liberal democracies.
 RULE OF LAW
• It is essentially the sovereignty or supremacy
of law over man.
• It insist that every person – irrespective of
rank and status in society – be subject to the
law.
• It is prescriptive – dictating conduct required
by law.
• It is protective of citizens – demanding govt.
act according to law,
 RULE OF LAW
• Historical tradition of public bodies providing
a specific legal justification for their actions.
• Courts adjudicating impartially on disputes
between citizens and the state.
• Those in power will abide by the ruling of the
court.
 RULE OF LAW
• Adherence does not mean that public bodies
do not act illegally and that citizens will not be
assaulted
• Abused by police officers
• Public bodies exceed their powers
• Ministers act unfairly
 RULE OF LAW
• The central issue is that unlawfulness is
identified and remedied
• Procedures exist to investigate and rectify
such transgressions.
• That such actions are seen as wrong is
evidence of the Rule of Law.
 RULE OF LAW - Aristotle
• The concept was recognised by Aristotle in
the fourth century B.C.:
• “The rule of law is preferable to that of any
individual
• Those in power should be subject to a ‘higher
law’ and govern accordingly”.
 Rule of Law
• Thomas Hobbes in The Leviathan (1651)
• Individuals gave up their autonomy for the
greater good.
• Social Bargain/Contract between government
and law-makers.
 RULE OF LAW – Thomas Hobbes
• Terms of the contract:
• There is no obligation to obey the state’s laws
if its commands are contrary to natural law or
If it is unable to protect its citizens.
 RULE OF LAW - Jacques Rousseau
• Social Contract and discourse (1762)
• Believed in social contract
• Sovereignty lay with the people.
• Power vested in government for social good.
• Government could only promulgate laws that
were moral and had the approval of the
people.
 RULE OF LAW – Thomas Paine
• The Rights of Man (1791)
• Individuals enjoyed both individual rights –
right to pursue happiness
• Civil right to a fair government.
• Rights to be protected by the Bill of Rights
• Government being trustees of these rights
 THE RULE OF LAW
• Fredrich von Hayek (1944) viewed the correct
role of government as being best confined to
establishing clear fixed rules of law which
ensure maximum economic freedom for
individuals, unimpeded either by planning
controls or ideas of redistribution justice.
 Fredrich von Hayek
• He believed that the Rule of Law requires no
more than the existence of a stable set of
rules to be applied in a uniform way in a
uniform non discretionary way
• A legal system that is just and in conformity
with the Rule of Law.
 POLITICAL VALUES INFLUENCING
CONSTITUTIONS
• LIBERALISM: Thomas Hobbes (1588-1679)
• IMPERSONAL STATE: John Locke (1632 1704)
• INDIVIDUAL RIGHTS: David Hume(1711-1776)
• Jeremy Bentham (1748 –
• John Stewart Mill (1808 - 1873)
 Rule of Law - Raz
• The Rule of Law and Its Virtue (1977)
• Is a morally neutral concept
• The moral content depends on the nature of
the law being enforced.
• ‘
 FORMALIST VIEW
• Formalist view – the rule of law must be
obeyed provided the form of law is
satisfactory
• Margaret Thatcher “The law is the law, is the
law, is the law .”
 SUBSTANTIVE VIEW
• Looking at the content of the law to see if it is
good law.
 RULE OF LAW – A. V. Dicey
• The Law of the Constitution (1885)
• ‘No man is punishable … except for a distinct
breach of law established in the ordinary legal
manner before the ordinary courts of the land
• The law does not give those in authority wide,
discretionary powers to interfere with the
personal freedom or property of subjects.
 Rule of Law Dicey
• Those in authority could only interfere with
personal freedom or property of a subject if
the subject had breached a specific law of the
land and the breach had been established in
the ordinary legal manner before the ordinary
courts of the land.
• Modern example: AG v Blake[200] 3 WLR 625
 Rule of Law – Dicey’s 2nd Rule
• “No man is above the law... But every man
whatever his rank or condition is subject to
the ordinary law of the realm… this excludes
the idea of any exemption of officials…from
the duty of obedience to the law which
governs other citizens…”
 Dicey’s 2nd Rule
• Every man whether subject or government
official must justify his acts by reference to the
same body of law applied in the ordinary
courts of the land
 Dicey’s 3rd. Rule
• The protection given to the rights of
individuals as superior as the emphasis was on
giving a remedy when a right was infringed
and not just a mere statement or declaration
of rights which could be regarded as mere
paper.
 POLITICAL VALUES INFLUENCING
CONSTITUTIONS
• UTILITARIANISM : Robert Nozick (1938- 2002)
• LIBERALISM: F redrick Hayek (1899 – 1992)
• Isiah Berlin (1902 – 1997)
• REPUBLICANISM: Machiavelli (1469 – 1527)
• Harrington (1611 – 1677)
• EQUALITY:
• EQUALITY : A v Secretary of State for Home
Department (2005)
• Constitutional and Administrative Law –
Hiilaire Barnett 4th. Edition Chp . 4 - The Rule
Of Law.
 RULE OF LAW
• It is not to be confused with democracy,
justice, equality …human rights of any kind or
respect for the dignity of man. A non-
democratic system, based on the denial of
human rights on extensive poverty, on racial
segregation, sexual inequalities and religious
persecution, in principle, conform to the
requirements of The Rule of Law. Raz
• The two facets of Administrative Law:
• 1. The use of law by government to
implement its policies:
• Delegated Authority
• Rule making
• Use of Discretion by public authorities.
• 2. The ways in which people (including
individuals, pressure groups, and businesses)
use law to seek redress of grievances against
government.
• Judicial review
• Tribunals
 MAIN PURPOSE
• To determine the framework of public
authorities
• To control the manner in which such bodies
exercise their functions.
• Define the public body in order to determine
whether it is subject to judicial review
 INTRODUCTION
• Narrow definition of Administration speaks of
Judicial Review:
• Parliament delegates some of its powers to an
inferior body which uses this power to make
decisions affecting the rights of citizens.
 INTRODUCTION
• How well the system works as a protection for
citizens against abuses of power of public
depends of the attitude of the judiciary.
• Judges have shown a willingness to intervene
in the decision making process on behalf of
citizens. Padfield v Minister of Agriculture
(1968); Council of Civil Service Unions v
Minister for the Civil Service (1985) GCHQ
 INTRODUCTION
• Broader definition: Administrative Law
encompasses problem solving agencies such
as the various Ombudsmen, and the Police
Complaints Authority.
•
 INTRODUCTION
• The existence of such bodies highlight the
shortcoming of Judicial Review as a safeguard
for the citizen, against the abuse of power.
• The availability of judicial review is at the
discretion of the judges. R v Preston
Supplementary Benefits Appeal Tribunal, ex
parte Moore 1975
 INTRODUCTION
• The U.K. Court of Appeal declined to interfere
with the tribunal’s decision on the ground that
the welfare system should not become a
‘happy hunting ground for lawyers’ and should
be administered with as little technicality as
possible.