Monday, October 23, 2006

Rule of Law - Public Law

The rule of law is considered the most fundamental doctrines of the constitution of UK. The constitution is said to be founded on the idea of the rule fo law.

AV Dicey's view on the rule of law cannot be ignored because of the lasting influence he has had. Dicey's views were derived from his understanding of the nature of democracy in UK as 'unitary and self-correcting in which the will of the people are expressed through Parliament, and in which Parliament controlled the government.

In setting out the rule of law, Dicey considered three distinct elements:
  1. No punishment may be inflicted on anyone other than for a breach of the law;
  2. Irrespective of rank and status, all men are equal under the law; and
  3. The rights and freedom of citizen are best protected under the common law.
The first principle involves the absence of arbitrary power on the part of the government and prevent it from making retrospective penal law.This means that no men is punishable except for a distinct breach of the law of the land. In order to comply fully with this requirement, laws should be open and accessible, clear and certain.

Under social contract theories, the individual citizen transfers his rights to the government. To express it in another way, the individual citizen owe allegiance to the Crown in return for protection of the Crown. The doctrine of allegiance incorporates the idea of obedience to law - both on the part of the citizen and the government.

Under the rule of law, the extent of the State's power and the manner in which it is exercise is limited and controlled by law. This control is aimed at preventing the State from acquiring and using wide discretionary powers.

In Dicey's view, inherent in discretion is the possibility of it being used in an arbitray manner and will be open to abuses.

If retrospective penal law is imposed, the individual will be placed in the position where his conduct was lawful at the time of his action but, subsequently held to be unlawful.

The court has always construed penal statutes narrowly and will be slow to find that Parliament intended to impose retrospective liability. If the Act of Parliament is expressed in language which is fairly capable of either interpretation, then the court would elect to construe it as prospective only.

In Waddington v Miah (1974), the House of Lords interpreted the Immigration Act 1971 which denied retrospective effect using Article 7 of ECHR which guarantees freedom from retrospectivity.

The second principle is Equality before the law. Dicey emphasise the notion that government itself is also subjected to law and that everyone shall be subjected to the law, irrespective of rank and positions. In the words Lord Denning in Gouriet: "Be ye ever so high, the law is above thee."

The idea of equality before the law is subjected to so many exceptions. In so far as equal powers are concerned, it must be recognised that the police have powers over and above ordinary citizen (under common law and Criminal Evidence Act 1984). Ministers also do have power to enact delegated legislation and the government exercises prerogative powers. Members of Parliament have immunities not available to citizen. In the words of Sir Ivor Jennings, 'No two citizen are entirely equal.'

In the view of TSR Allan, "The constitutional principle of the rule of law serves to bridge the gap between the legal doctrines of parliamentary sovereignty and the political sovereignty of the people ... The rule of law therefore assists in preventing the subversion of the sovereignty of the people by manipulating the legal sovereignty of Parliament."

The evidence for the notion of equality before the law is neither clear nor uncontentious. There remains room for doubt and arguments.

The third principle deals with the protection of rights under Common law. Dicey's preference demonstrates a faith in the judiciary.

In Dicey's view, the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (example: the rights to personal liberty and the Rights for a fair trial) is with us the result of judicial decisions.

The third limb of Dicey may look unsustainable nowadays. The enactment of the HRA 1998 which incorporates rights protected under the ECHR includes the obligations of the government to respect human rights (Article 1), Rights to liberty and security (Article 3), Rights to a fair trial (Article 6), and no punishment without law (Article 7).

It is essential to recognise that Dicey was writing from a particular political perspective. Dicey is a committed believer of free market operations and was opposed to any increase in State activity that would regulate the economy.

Dicey laid great emphasis on government by law, rather than by men.

In conclusion, the rule of law represents a challenge to State authority and power, demanding both that power be granted legitimately and that their exercise is according to law. The law is not autonomous but rests on the support of those it governs. Whilst the rule of law places law above everyone, it remains paradoxically subjected to the ultimate judgement of the people.

13 comments:

Sam said...

thankx for posting such useful material.i have a assignemnt to do n ur post was very helpful!thanks a million!keep posting such good stuff!take care.bye

ganesh said...

I am studing for law.I have questiton to do.Pls help me in this questiton.icey's definition of the rule of law have relevance today?

ganesh said...

Dicey's definition of Rule of Law have relevance today?

ganesh said...

The rule of law is too vague a concept to be of practical relevance to an evalution of the action of government. Discuss

jasonchew said...

i am sutdying law too!!!plz help to do the question!!!Av Dicey's definition of the rule of law have any practical relevance today???

Maverick SM said...

Rule of Law & Relevance

Maverick SM said...

Jason and Ganesh,

Argue out Dicey's 3 limbs using cases and include the views of jurists such as EP Thomson, Sir Ivor Jennings, Raz, TSR Allan, etc.

Read another article here

LegallyBlond said...
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LegallyBlond said...
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leah marie said...
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leah marie said...

was wondering if u had any idea how to approach this question.. is there a distinctly british approach to internatinal law..

May 01, 2007 7:59 PM

mary said...

u'll got some useful information here,think u can assist me with a question on human rights, here goes. Has the Human Rights Act led to a more pronounced judicial intervention into politics?

Elmina Kenley said...

The standard of law is excessively obscure an idea, making it impossible to be of down to earth importance to an evalution of the activity of government. Talk about Law Essay