Lecture 4: The rule of Law
“the rule of law is a crucial stand in the cons. Tapestry for the protection of liberty: it
excludes arbitrary or discriminatory action by the powerful against the powerless by
erecting the general law as a barrier between the two” (TRS Allan, substantive
conception)
not a legal principle; such as parliamentary sovereignty
just a moral principle; relates to what government can do and how it can do it
serves as foundation for constitution
Tony Blair (2003): “ours are not western values, they are universal values of the
human spirit…freedom not tyranny, democracy not dictatorship; the rule of law not
the rule of the secret police.”
Securing compliance (following) of law
History of rule of law:
Theory of Natural Law: refers to laws which exist due to human beings (moral
aspiration)
Aristotle: “it is better for law to rule than one of the citizens”
Social Contract Theory (Hobbes, Locke, Rousseau): idea that law came from God; and
people and government should agree with each other through laws
Magna Carta 1215: “King should not be subject to men, but to God and to Law“
(Bracton)
This held King accountable for lawful authority
Entick v Carrington:
Secretary issued unlawful warrant without any authority
Even gov. ministers must follow the Law
Breaches Dicey’s three meanings- 2nd meaning is no man should be above the Law
A. Dicey:
What is the extent to which the gov. abides by the rule of law
Professor dicey at oxford; importance is that he explained constitutional law at
university
Use in exam
Bingham on Dicey:
“credit for coining the expression the is usually given by Dicey”
dicey responsible for making sur that no modern democratic gov. can omit reference
to it
He gives ROL three meanings:
1) supremacy or predominance for regular law; echoing Aristotle- people should be
guided by law
2) Equality for all classes; no man is above the law
example case: M v Home office
asylum seeker had application rejected and had to return to home country
but last second further evidence impacted application so court told gov. to wait for
deportation
Home secretary ignored it and sent him home; was found in contempt of court
Malone v MPC
Stole goods, stood trail
“the rule of law is a crucial stand in the cons. Tapestry for the protection of liberty: it
excludes arbitrary or discriminatory action by the powerful against the powerless by
erecting the general law as a barrier between the two” (TRS Allan, substantive
conception)
not a legal principle; such as parliamentary sovereignty
just a moral principle; relates to what government can do and how it can do it
serves as foundation for constitution
Tony Blair (2003): “ours are not western values, they are universal values of the
human spirit…freedom not tyranny, democracy not dictatorship; the rule of law not
the rule of the secret police.”
Securing compliance (following) of law
History of rule of law:
Theory of Natural Law: refers to laws which exist due to human beings (moral
aspiration)
Aristotle: “it is better for law to rule than one of the citizens”
Social Contract Theory (Hobbes, Locke, Rousseau): idea that law came from God; and
people and government should agree with each other through laws
Magna Carta 1215: “King should not be subject to men, but to God and to Law“
(Bracton)
This held King accountable for lawful authority
Entick v Carrington:
Secretary issued unlawful warrant without any authority
Even gov. ministers must follow the Law
Breaches Dicey’s three meanings- 2nd meaning is no man should be above the Law
A. Dicey:
What is the extent to which the gov. abides by the rule of law
Professor dicey at oxford; importance is that he explained constitutional law at
university
Use in exam
Bingham on Dicey:
“credit for coining the expression the is usually given by Dicey”
dicey responsible for making sur that no modern democratic gov. can omit reference
to it
He gives ROL three meanings:
1) supremacy or predominance for regular law; echoing Aristotle- people should be
guided by law
2) Equality for all classes; no man is above the law
example case: M v Home office
asylum seeker had application rejected and had to return to home country
but last second further evidence impacted application so court told gov. to wait for
deportation
Home secretary ignored it and sent him home; was found in contempt of court
Malone v MPC
Stole goods, stood trail
