L E 2 (ENGLISH LEGAL SYSTEM AND ITS CONTEXT).
(C). THE RULE OF LAW
1. It means that law reigns supreme. Everyone is equal before law and equally
accountable to it.
2. Law is made and enforced through a fair process ie no discrimination on the
basis of class, gender and race and there's no punishment except by law.
3. The rule of law is democratic because government is accountable to law and can't
act in a dictatorial manner ie it's powers are controlled eg, police may arrest,
but only according to the rules set out in PACE 1984.
PROFESSOR DICEY'S VIEWS ON THE RULE OF LAW:
1. The rule of law is an important feature that distinguishes English law from
laws of other nations.
2. Three elements create it: (a), absence of arbitrary power on the part of state.
Law must set limits what the state can and cannot do. In this way, state should not
have unlimited discretionary powers. (b), equality before law, no one is above law
and no matter what, law treats everyone same. Those who carry out the functions of
the state must be accountable for all their actions under the law and (c), there's
supremacy of ordinary law.
3. There are three major problems with Dicey's explanation :
( a). It conflicts with parliamentary supremacy ( parliament can make any law, can
overrule any law and it's law can't be overruled by any other body as they can't
even be challenged through judicial review). This way arbitrary powers are given to
the state.
(b). Dicey's explanation of equality before law is a formal equality having no
regard to differences between people in terms of wealth and power. Equality before
law can't be achieved unless these inequalities are removed.
(c). Dicey's ideas are abstract which are difficult to apply in real life.
RULE OF LAW ACCORDING TO HAYEK AND RAZ:
1. Von Hayek argued that the rule of law is becoming weaker because state actions
are authorised by law and this is in conflict with the rule of law.
2. Joseph Raz argued that the rule of law is a way of controlling discretion
rather than preventing it. Key point of the rule of law is to guide Individuals
behavior by providing clear rules and procedures for making laws, making judiciary
independent, observing principles of natural justice (open, fair hearing and
opportunity to everyone to put his case) and giving powers to the courts to review
any principle implemented according to the rule of law eg The Constitutional Reform
Act 2005 recognised the rule of law and independence of judiciary).
THE RULE OF LAW AND LAW MAKING:1. A process by which laws are made must be open and
fair ie Acts of parliament passed by both houses.
2. HL exercises a check on the law making process as it has continuously opposed
allowing serious criminal trials conducted without jury.
3. Statutory instruments are controlled by Parliament through affirmative and
negative resolutions and also by the courts through judicial review.
THE RULE OF LAW AND THE LEGAL SYSTEM:
1. There's a fair trial.
2. In criminal cases, there's a trial by jury. This promotes fairness and protects
citizen's rights.
3. No one is imprisoned without trial.
4. In Civil justice system, there's no discrimination, corruption or undue
influence ( no public official influences the course of justice) because UK legal
system is impartial.
5. Civil justice system is accessible and affordable for everyone ( although
public funding of cases has been cut in the past 20 years and the cost of taking
civil cases to the court has been increased). But, there's an increase in much
cheaper alternative ways of dispute resolution.
THE RULE OF LAW AND THE SUBSTANTIVE LAW:
1. Substantive law must not be oppressive and people must have fundamental human
rights.
2. Criminal law protects human body ( murder, manslaughter and battery, injury and
GBH are offences) and human property ( theft, burglary and criminal damage are
offences). It also protects public order by preventing disruptive behavior. Besides
this, regulatory offences prevent pollution, promote food quality and ensure road
safety through traffic rules.
3. Tort law sets out rights and duties people owe to each other. It protects
people and their property by compensating the victims through damages paid by tort
feasors. A person affected may bring a claim. One problem is that public funding is
not available in tort claims which means that in theory, everyone can claim but, in
practice only those who afford can claim.
4. In Contract law, there's an offer and acceptance, alongwith consideration and
intention to create legal relationship with capacity. Individuals have freedom to
make any kind of contract, however, consumers have very little choice making
contracts with businesses and there's no real equality between the parties in this
situation.
5. In the law of human rights, there's no discrimination on gender, class, age and
ethnic basis. ECHR has been incorporated into UK law by HRA 1998 which contains a
huge range of human rights like right to liberty which can't be taken away except
by due process of law, right to fair trial and freedom of speech, religion,
association and movement etc.
