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Historical thought
[edit]Albert Venn Dicey decribed the rule of law as acting in three ways: the predominance of regular law as opposed to the influence of arbitrary power; equality before the law;, and, lastly, that the law of the constitution are not the source but the consequence of the rights of individuals.[1]
Modern ideas
[edit]The rule of law is emphasised through many separate ideas. Among them are that law and order in contrast to anarchy; the running of government in line with the law (i.e. "legal government") and normative discussion about the rights of the state as compared to the individual.[2]
Prevention of crime
[edit]Law and order requires the prevention of crime only, and, as such, it does not matter by what means these are achieved, or what the characteristics of the law are. This concept of the rule of the law can, therefore, be upheld by even the most tyrannical dictatorship. Such a regime may allow for the normal operation of courts between private parties, and the limited questioning of the government within the dictatorial framework.[2] Whether the rule of law can truly exist without democracy is debated. Freedom of expression and action seems to be what the prevention of crime allows citizens; therefore, limiting it by autocratic means has been considered incompatible with the rule of law. However, the picture is much clearer in the other direction: for democracy to thrive, the rule of law (in this limited sense) must be observed.[3]
Legal form
[edit]Public authorities must act within the law assigned to them, a second approach to the rule of law. Any actions taken outside the law are ultra vires and cannot be sanctioned by the courts. Entick v Carrington was a landmark case in terms of the English law, with the famous dictum of Camden LJ: "If this is law it would be found in our books, but no such law ever existed in this country".[4][5] Joseph Raz identifies government following the law as a tautology: if the will of those inside the government were expressed outside their legal constraints, they would no longer be acting as the government. He therefore characterises this legal form argument as one of mere obedience to the law; ensuring those in government follow the laws as those outside it should. He rejects that as the sole conception of the rule of law.[6] In the far more recent case of R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), the actions of the British government was found to have no basis in law. Additional powers can be granted to actors on behalf of the government only through parliament. In the United Kingdom, sanctions for departing from these rules come through ordinary court procedure; in other countries they may be assigned to designated courts.[5] Government departments are directly liable for damage caused by their acts; however, the sovereign retains immunity from prosecution. This immunity runs wider that the Head of State of other countries, for example, the President of the United States may be impeached then put on trial.[7] In M v Home Office the Home Secretary was found to be liable for contempt of court. On the other hand, Acts of Parliament that contravene basic rights – such as the indefinite detention without trial of suspected terrorists – whilst adhering to this concept of the rule of law.[8]
This is identified by Dicey as part of his first conception: "a man may with us be punished for a breach of law, but he can be punished for nothing else".[1]
Substantive content
[edit]Any substantive version of the rule of law as it applies to the United Kingdom asks normative questions about under what rules the government should be under, rather than merely ensuring it follows those it is under. The rule of law is thus likely to be invoked when considering controversial powers of the government that stray from precedent, depart from the European Convention of Human Rights as embodied in the Human Rights Act 1998, and break new legislative ground.[9]
This interpretation is particularly controversial. If the rule of law is to enforce specific "consitutional" or "core" rights, what should they be difficult to decide. Among them are questions of whether ideas such as the right not to be held indefinitely without trial, deemed contrary to the Convention in A v Home Secretary, could ever be deemed appropriate if circumstances changed.[10] In R (Corner House Research) v Director of the Serious Fraud Office, the defendant was deemed to allow national security concerns to take precedence over a thorough investigation into bribery in arms deals. This leads to the suggestion that the rule of law thus construed enforces purely subjective aims and might therefore be of little value.[10]
Trevor Allan sees th rule of law as, primarily, a vehicle for the protection of rights against "irresponsible legislative encroachment" in the face of a government with a large authority, backed by (normally) a signficant majority in the House of Commons.[11] The law of law is contrasted with rule by men, and the arbitrary power one man might exercise over the other – the people require protection from the government.[12] This leads him to support the "core" features of the rule of law, including government acting within its legal authority.[13] Noting that this is not incompatible with wide discretionary powers on the part of the government, Allan then goes on to accept Raz's complaint, below, that too wide a definition is to expound a complete social philoshopy. He instead choses a conception that is not so wide, whilst being not as limited as Raz'.[14]
Opposition to substantive content
[edit]In particular, Joseph Raz has argued that the rule of law should be limited to formal values – although formal values wider than merely maintaining law and order. These include transparaency of law making, non-retroactive law, the independence of the judiciary and wide access to the courts, and the right to a fair trial.[10] He suggests that the rule of law has become a by-word for general political ideals, separate from its actual meaning: "if the rule of law is the rule of good law then to explain its nature is to expund a complete social philosophy".[15] Instead, he identifies principles of "open and relatively stable" lawmaking, and laws that the public can live their lives by. This concept is a merely formal one, he identifies, because this could be achieved through dictatorship, democracy, or any other means.[16] He expresses confidence that this conception is not so restricted an approach as to be meaningless.[16] Raz drew on similar ideas expressed by Friedrich Hayek, including "stripped of all technicalities, [the rule of law] means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge."[17] Raz identifies eight principles instead: prospective, open and clear laws; relatively stable laws; laws based on stable, open and open and clear rules; the independence of the judiciary; the principles of natural justice (unbiased judiciary); judicial review of implementation; accessible courts; and no pervertion of the law by policing discretion.[18] However, he considers the list incomplete.[19]
References
[edit]- ^ a b Dicey (1914). Part 2, chapter 4.
- ^ a b Bradley, Ewing (2011). p. 95.
- ^ Bradley, Ewing (2011). pp. 95–96.
- ^ [1765] EWHC KB J98
- ^ a b Bradley, Ewing (2011). p. 96.
- ^ Raz (1977). pp. 196–197.
- ^ Bradley, Ewing (2011). pp. 96–97.
- ^ Bradley, Ewing (2011). p. 97.
- ^ Bradley, Ewing (2011). pp. 97–98.
- ^ a b c Bradley, Ewing (2011). p. 98.
- ^ Allan (1985). pp. 111–112.
- ^ Allan (1985). pp. 112–113.
- ^ Allan (1985). p. 113.
- ^ Allan (1985). pp. 113–114.
- ^ Raz (1997). p. 195.
- ^ a b Raz (1997). p. 198.
- ^ Taken from The Road to Serfdom (1945): quoted in Raz (1977) p. 195.
- ^ Raz (1977). pp. 198–201.
- ^ Raz (1977). p. 202.
- Dicey, A. V. (1914). Introduction to the Study of the Law of the Constitution.
- Raz, Joseph (1977). "The Rule of Law and its Virtue". Law Quarterly Review.
- Allan, Trevor (1985). "Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism". Cambridge Law Journal.