BEK Chapter 6 – The Rule of Law
INTRODUCTION
Need for government to adhere to rule of law if citizens are to be
protected against arbitrary and harsh acts of government
Since 9/11, more urgent questions have been raised as to the legality of
measures taken in the ‘war against terrorism’
o Indefinite detention without trial under the Anti-Terrorism, Crime and
Security Act 2001 in breach of ECHR
o Evidence obtained or likely to be obtained by torture committed
abroad by a foreign state’s agents inadmissible in proceedings
before the Special Immigration Appeals Commission
Continuing relevance of values associated with the rule of law
A working definition
“For private persons, the rule is that you may do anything you choose
which the law does not prohibit. … But for public bodies the rule is
opposite, and so of another character altogether. It is that any action to be
taken must be justified by positive law.” (Laws J in R. v. Somerset County
Council, ex parte Fewings [1995] 1 All E.R. 513, p. 523)
Enabling and constraining v empowering and constraining
Thin meaning (formative) vs. thick meaning (substantive)?
o Thin definitions of the rule of law do not make a judgment about the
"justness" of law itself, but define specific procedural attributes that
a legal framework must have in order to be in compliance with the
rule of law.
prospective, well-known, and have characteristics of
generality, equality, and certainty
o Thick conceptions of the rule of law go beyond this and include
certain substantive rights that are said to be based on, or derived
from, the rule of law
rule of law intrinsically protects some or all individual rights
o Debate = what system to protect human rights? Rule of law gives
equality, but there are cases such as the Terrorism Act which, in
some sense, infringes the rule of law
o Debate = two views of democracy (the view of the majority vs.
further limits necessary through courts)
If men were angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on government would
be necessary. In framing a government which is to be administered by
men over men, the great difficulty lies in this: You must first enable the
government to control the governed; and in the next place, oblige it to
control itself. A dependence on the people is no doubt the primary control
on the government; but experience has taught mankind the necessity of
auxiliary precautions
HISTORICAL DEVELOPMENT
For all of history, state has sought to discharge two functions
INTRODUCTION
Need for government to adhere to rule of law if citizens are to be
protected against arbitrary and harsh acts of government
Since 9/11, more urgent questions have been raised as to the legality of
measures taken in the ‘war against terrorism’
o Indefinite detention without trial under the Anti-Terrorism, Crime and
Security Act 2001 in breach of ECHR
o Evidence obtained or likely to be obtained by torture committed
abroad by a foreign state’s agents inadmissible in proceedings
before the Special Immigration Appeals Commission
Continuing relevance of values associated with the rule of law
A working definition
“For private persons, the rule is that you may do anything you choose
which the law does not prohibit. … But for public bodies the rule is
opposite, and so of another character altogether. It is that any action to be
taken must be justified by positive law.” (Laws J in R. v. Somerset County
Council, ex parte Fewings [1995] 1 All E.R. 513, p. 523)
Enabling and constraining v empowering and constraining
Thin meaning (formative) vs. thick meaning (substantive)?
o Thin definitions of the rule of law do not make a judgment about the
"justness" of law itself, but define specific procedural attributes that
a legal framework must have in order to be in compliance with the
rule of law.
prospective, well-known, and have characteristics of
generality, equality, and certainty
o Thick conceptions of the rule of law go beyond this and include
certain substantive rights that are said to be based on, or derived
from, the rule of law
rule of law intrinsically protects some or all individual rights
o Debate = what system to protect human rights? Rule of law gives
equality, but there are cases such as the Terrorism Act which, in
some sense, infringes the rule of law
o Debate = two views of democracy (the view of the majority vs.
further limits necessary through courts)
If men were angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on government would
be necessary. In framing a government which is to be administered by
men over men, the great difficulty lies in this: You must first enable the
government to control the governed; and in the next place, oblige it to
control itself. A dependence on the people is no doubt the primary control
on the government; but experience has taught mankind the necessity of
auxiliary precautions
HISTORICAL DEVELOPMENT
For all of history, state has sought to discharge two functions
