Rule of Law
19th Century concept in UK → Society governed by the law.
Rule of Law is especially important in the UK since the UK does not have a codified constitution.
Aristotle: “It is more proper that law should govern than any on of the citizens.”
Magna Carta 1215: King should act according to the Rule of Law.
John Locke: Where the law ends, tyranny begins.
Thomas Paine: The law is king.
Constitutional Reform Act, 2005: Mentions Rule of Law, but does not define it.
Bingham: Procedural aspect of law, protection of human rights, access to unbiased justice and equality.
K.C. Wheare: Under a constitution, the government is bound by it and restricted by it. This is less so in the
UK’s constitutional system. The original idea of a constitution (see Locke and Paine) was to restrict the
powers of the government. This function is achieved by the constitutional principle of Rule of Law in the
UK.
Content-Free Approach:
Stipulated procedure → Rule of Law upheld.
Joseph Raz: Law in itself should have power, clarity and stability.
Judiciary must be independent and accessible.
Discriminatory law, ‘wrong’ law, tyranny and unjust legal system would be lawful under the content-free
approach/ideology.
Content-Rich Approach:
Content should be good and in the interest of the public → Rule of Law will be upheld.
Ronald Dworkin: The judiciary should enforce rights and duties that citizens have and owe to others.
Approval or disapproval of the content will be a subjective enterprise.
Dicey:
1. No man can be punished unless he breaches law.
a) [Entick v Carrington] Camden CJ: The state may do nothing but that which is expressly
authorized by law, while the individual may do anything but that which is forbidden by law.
All acts of the state must have clear and solid foundations in law.
Bradley & Ewing: This alone is not enough. Values such as liberty and due process must also
exist in the State and State activities for the rule of law to prevail.
2. No man was above the law.
a) [M v Home Office] Secretary of State was not given crown immunity.
3. Judges protect Human Rights, thus upholding the Rule of Law.
a) [Leech] Right to life recognized.
b) [Daly] Privacy of prisoners protected.
Ivor Jennings: Dicey is limited to human rights and not other aspects of the constitution.
Dicey failed to deal with governmental powers where derogation from human rights was a possibility in
national security situations. No equality between citizens and officials. Immunity to specific category.
Where does that leave the Rule of Law?
Bingham:
Every single entity is entitled to benefits under the law, and bound by the restrictions under law.
1. The law must be accessible and so far as possible intelligible, clear and predictable.
19th Century concept in UK → Society governed by the law.
Rule of Law is especially important in the UK since the UK does not have a codified constitution.
Aristotle: “It is more proper that law should govern than any on of the citizens.”
Magna Carta 1215: King should act according to the Rule of Law.
John Locke: Where the law ends, tyranny begins.
Thomas Paine: The law is king.
Constitutional Reform Act, 2005: Mentions Rule of Law, but does not define it.
Bingham: Procedural aspect of law, protection of human rights, access to unbiased justice and equality.
K.C. Wheare: Under a constitution, the government is bound by it and restricted by it. This is less so in the
UK’s constitutional system. The original idea of a constitution (see Locke and Paine) was to restrict the
powers of the government. This function is achieved by the constitutional principle of Rule of Law in the
UK.
Content-Free Approach:
Stipulated procedure → Rule of Law upheld.
Joseph Raz: Law in itself should have power, clarity and stability.
Judiciary must be independent and accessible.
Discriminatory law, ‘wrong’ law, tyranny and unjust legal system would be lawful under the content-free
approach/ideology.
Content-Rich Approach:
Content should be good and in the interest of the public → Rule of Law will be upheld.
Ronald Dworkin: The judiciary should enforce rights and duties that citizens have and owe to others.
Approval or disapproval of the content will be a subjective enterprise.
Dicey:
1. No man can be punished unless he breaches law.
a) [Entick v Carrington] Camden CJ: The state may do nothing but that which is expressly
authorized by law, while the individual may do anything but that which is forbidden by law.
All acts of the state must have clear and solid foundations in law.
Bradley & Ewing: This alone is not enough. Values such as liberty and due process must also
exist in the State and State activities for the rule of law to prevail.
2. No man was above the law.
a) [M v Home Office] Secretary of State was not given crown immunity.
3. Judges protect Human Rights, thus upholding the Rule of Law.
a) [Leech] Right to life recognized.
b) [Daly] Privacy of prisoners protected.
Ivor Jennings: Dicey is limited to human rights and not other aspects of the constitution.
Dicey failed to deal with governmental powers where derogation from human rights was a possibility in
national security situations. No equality between citizens and officials. Immunity to specific category.
Where does that leave the Rule of Law?
Bingham:
Every single entity is entitled to benefits under the law, and bound by the restrictions under law.
1. The law must be accessible and so far as possible intelligible, clear and predictable.
