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The rule of law - What exactly is it? watch

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    I'm a first year law student at KCL. I'm doing public law, and apparently the "rule of law" is the most important principle. But I can't work out from the textbook or from lectures or from anywhere else what exactly it means... Anyone got a clear definition they can provide? x
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    Very simply put, it means that "no one is above the law".

    Dicey (look him up):
    1. The rights of individuals are determined by legal rules and not the arbitrary behaviour of authorities.
    2. There can be no punishment unless a court decides there has been a breach of law.
    3. Everyone, regardless of your position in society, is subject to the law.
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    It means different things to different people

    I once went to a lecture by Lord Bingham on the Rule of law, he went through no less than 8 completely different things.

    You need to try and distill yourself a summary of the key different meanings
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    In simple terms, nobody is above the law
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    The rule of law is a complex creature but to better understand it you probably need to look at the concept of Judicial review in America vis a vis the concept of Parly sovereignty
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    There is no fixed definition of the rule of law. It depends on whether you want a formal rule of law or if you want a substantive rule of law. In the case of the former, it is essentialy the principle of legality, consistency and equality in law. In the case of the latter, there is much more debate about what it should be for it is a debate, essentially, about what "good law" is; and that changes depending on your political philosophy.

    For a more thorough explanation, I'd look at Raz's 7-point conception of the rule of law (which mostly, as long as you're not a lunatic Muslim, is the fundamentals of Western formal rule of law) and also Lord Bingham's lecture which was mentioned above called 'Rule of Law' (reprinted in 66 Cambridge Law Journal, March 2007). And, obviously, the basic (traditional) definition is given by Dicey - which should be in your textbook - although, I really don't think his conception is that relevant any more. Much like Dicey everywhere in Public law.
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    In very very simple terms 'rule of law' dictates that everything must be done according to the law and not according to the whims and fancies of the rulers..

    This is the basic info I usually keep in mind..
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    The rule of law is the principle that those exercising a governmental function should not be able to exercise power arbitrarily, but rather be subject to legal controls. De Smith stated that: ‘powers exercised by politicians must have a legitimate foundation…based on authority conferred by law’. Adherence to the rule of law is necessary in ensuring that individual rights are protected from those governing the state. The general divide in opinion seems to be that for some, the idea that government action has a legal foundation provides nothing more than a procedural safeguard against the exercise of arbitrary power. Others take a more substantive view, and regard the rule of law not only as a legal necessity but as a protector of fundamental rights.

    The two broad schools of thought amongst writers in this area are those which believe in the formal rule of law and those which believe in the substantive rule of law. The formal rule of law view is that for there to be government under the law, laws must adhere to certain procedural requirements. This view says nothing about the morality of law but rather that the subjects should be guided so that each knows their position in the state. Joseph Raz is a key advocate of the formal law and states that in order to achieve the desired certainty laws should be ‘prospective, clear, adjudged by an independent judiciary and must allow its citizens access to the courts’.

    On the other hand, Leon Fuller’s analysis takes a much more substantive view than Raz’s. According to Fuller the law must possess some form of internal morality to be worthy of being called a legal system. Thus, he concludes that a regime which mealy commands authority could be a governmental system, but not a legal system. According to this form of analysis a legal system must serve the interests of a population and not simply those in the regime itself.

    In an ‘Introduction to the study of the Law of the Constitution’, Dicey stated that the rule of law has three broad aims. These can be summarised as: the supremacy of regular law over arbitrary powers, equality before the law, and that no higher law other than the rights of individuals are determined through the courts. These and similar theories can be analysed in answer to your question. In the book ‘Rule of Law’ Lord Bingham defined what he believed to be the 8 sub-sections to the rule of law, in a very substantive and modern approach. An example of is which is that ‘legal and adjudicative processes should be fair’.

    By analysing the UK constitution it becomes clear that there are some key principles which shape the rule of law. In Kelly v Faulkner it was held that even during times of emergency, the normal legal requirements regarding the valid execution of arrest must be obeyed. Thus, those exercising legal power must have some legal authority for their actions, within the terms provided by Parliament. Retrospective laws are also seen as incompatible with the rule of law. In Burmah Oil Co Ltd v Lord Advocate, a claim was made against the Crown for damage done by the British during war time. Parliament later passed the War Damages Act 1965, with retrospective effect, to deny effectiveness to such claims for compensation. The courts must also enforce law rather than arbitrarily creating it. In Shaw v DPP, the House of Lords effectively resurrected the offence of ‘conspiracy to corrupt public morals’, which had long fallen into disuse.

    According to Fenwick, ‘there should be a law for all, governed and government alike’. There are clear exceptions to this aspect of the rule of law in the UK, although how justified these exceptions are becomes questionable – they help form the checks and balances system within the doctrine of separation of powers. Such exceptions are that ‘the law of blasphemy exists only for the Christian religion’ and ‘certain officials are in charge of special powers’.

    The rule of law can also represent a check on the scope of Parliamentary authority by the imposition of limits on the power of the sovereign body in the interests of members or for the protection of individual liberties. For Dicey, in ‘An introduction to the study of the Constitution’, the rule of law and doctrine of parliamentary sovereignty are the two fundamental principles on which the constitutions rests.

    In R v Secutary of State for the Home Department ex. P. Sims, Lord Hofmann said: “…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost”. Also, in R v Attorney General 2005, Lord Hope said: “the rule of law enforced by the courts is the ultimate enforcing factor on which our constitution is based”.

    Parliament will remain supreme whilst the rule of law ensures that the executive does not exceed its power. There are several theories which seek to define what a rule of law should provide, and the effect of the rule of law can be seen in common law. The doctrine of the separation of powers can be used in answer to this question: the judiciary, though performing its constitutional function, keeps the executive in check through the rule of law and so upholds the law as sanctioned by Parliament.
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    (Original post by jacketpotato)
    It means different things to different people

    I once went to a lecture by Lord Bingham on the Rule of law, he went through no less than 8 completely different things.

    You need to try and distill yourself a summary of the key different meanings

    Lord Bingham has written a book called The Rule of Law available on amazon for about 11 quid. I have just got it for my rule of law essay and i have found it very helpful
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    hi guys.. my question involve rule of law...

    identify and describe poers and functions of the judiciary indispensable to the rule of law??

    can any one explain what the rule of law id doing in judiciary indispensable...plz provide me claer view of this question..thx
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    hey guys... this is my first presentation and the topic i have given i quite hard ..i am unable to find any info on it.. if any of u know anything about this topic plz explain all the four area such as market covergence, cost advanatage, global competition and influence of governement .(plz provide example if possible to gain better understanding).. i ll appreciate help.... thx alot guys
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    (Original post by malti)
    hey guys... this is my first presentation and the topic i have given i quite hard ..i am unable to find any info on it.. if any of u know anything about this topic plz explain all the four area such as market covergence, cost advanatage, global competition and influence of governement .(plz provide example if possible to gain better understanding).. i ll appreciate help.... thx alot guys
    just give me a ring I'll explain - I've just handed in coursework on a very similar topic, happy to talk you through it :-) will only take 5 mins, I'm sure it will help...

    07585774978
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    (Original post by stevie wonder 65)
    just give me a ring I'll explain - I've just handed in coursework on a very similar topic, happy to talk you through it :-) will only take 5 mins, I'm sure it will help...
    I would remove that number if I were you.
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    What is the impact of the expenses scandal on the Rule of Law?
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    aptly said , it connotes different meanings to different legal minds . important to note is that there are two devides , that is the formalistic approach and the substantive approach. the formalistic approach is Dicean conceptions which says as long as there is a law in place then there is rule of law , this means that even the regime of Hitler could be said to have upheld rule of law without doubt. On the other camp there is the substantive approach , which looks at the content and nature of the law in place. this questions sums it up , is it a good law ?. the inner morality is the pilaar in this. to me rule of law is respect of human rights and giving courts uncurtailed powers or jurisdiction to uphold and snction those who breach the rule.
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    [QUOTE=ndlovume;60903585]aptly said , it connotes different meanings to different legal minds . important to note is that there are two devides , that is the formalistic approach and the substantive approach. the formalistic approach is Dicean conceptions which says as long as there is a law in place then there is rule of law , this means that even the regime of Hitler could be said to have upheld rule of law without doubt. On the other camp there is the substantive approach , which looks at the content and nature of the law in place. this questions sums it up , is it a good law ?. the inner morality is the pilaar in this. to me rule of law is respect of human rights and giving courts uncurtailed powers or jurisdiction to uphold and snction those who breach the rule. The political atmosphere normally dictates the route to be followed.
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    aptly said . there are two extreme devides on what rule of law is. in one hand there is a formalistic approach which postulates that there should be a law in place , even Hitler 's laws were in line with the rule of law according to this Dicean view. on the other extreme there is the substantive approach , this considers the nature and content of the laws in place which should always align to the fundamental human rights. this is called the inner morality of law according to Fuller. one should formualte his or her own view and perception on the notions of rule of law, to me it is ..align every law with human rights and courts should play such a role. by Method Gatsheni.
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    Your comment about Muslims was stretching it. Not cool bro
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    Your comment about Muslims was stretching it dude. Not cool
 
 
 
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