rule of law
Terms in this set (11)
What upholds the rule of law?
Not concerned w/ the content of the law but rather HOW the law is applied (dicey and raz)
Concerned w whether the law upholds peoples constitutional rights (builds on formalist theories
Dicey believed law was based on 3 things
1. Supremacy of regular law and not discretionary authority (discretion = room for arbitrariness"
2. Equality before the law (c.f french and english law but was criticised by Robson for analysing French law inaccurately)
3. Common law stems from constitutional law —
Dicey's 4 parts to rule of law
- law must be followed by the by the public and law enforcement officials
2. Certainty: the law should be certain and predictable
- people cannot follow the law if they don't know what it is (grounded in substantive fairness)
3. Equality: no person is exempt from the enforcement of the law
- concerned w/ the way laws are ENFORCED and not their content
I.e. discriminatory laws are still w/in the rule of law
4. Access to justice and rights (magna carta)
- promoting notions of liberty, requirements of rights and interests to be properly justified.
Raz - law should have the following 6 qualities...
1. Prospective and not retrospective
2. guided by Open, general and clear rules
3. should be Stable
4. there should be Access to courts
5. there should be an Independent judiciary
6. relevant legal rules should not be undermined by the Discretion of law enforcement agencies
Raz: law should be an effective means of...
Bingham: laws are __(1)__ that should embody __(2)___
(2) sound and moral principles
Bingham's 8 distinct sub rules
1. law must be Accessible
2. law should be Applied rather than applied in a discretionary way
3. laws must adequately Protect human rights
4. laws should apply Equally to all
5. there should be no Prohibiting costs to resolve legal disputes
6. ministers and public officers should exercise their powers Reasonably in good faith
7. legal procedures provided by the state should be Fair
8. rule of law requires state compliance w/ obligations in International law
Dworkin famous quote
Rights as trumps
Dworkins 2 theories
1. Rulebook conception: gov't should never exercise power against individuals except for rules set out in advance and made available to all.
2. Rights conception: assumes citizens have moral rights and duties w respect to one another against the state
—> these moral and political rights should be recognised in law and enforced via the judiciary
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