2-Rule of Law - notes PDF

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The Rule of Law Contents 1. 2. 3. 4.

The Rule of Law A. V Dicey FA von Hayek Joseph Raz

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1. The Rule of Law1 The “rule of law” is a symbolic idea but is difficult to define precisely. The best known explanation of the rule of law was given by Dicey in the nineteenth century. Dicey argued that the rule was an important feature that distinguished English law from law in other countries in Europe. 2. A V Dicey The elements of the Rule of Law, according to Dicey are: 1. An absence of arbitrary power on the part of the State: the extent of the State’s power, and the way in which it exercises such power, is limited and controlled by law. Such control is aimed at preventing the State from acquiring and using wide discretionary powers, for, as Dicey correctly recognised, the problem with discretion is that it can be exercised in an arbitrary manner, and that above all else is to be feared, at least as Dicey would have us believe. 2. Equality before the law: the fact that no person is above the law, irrespective of rank or class. This was linked with the fact that functionaries of the State are subject to the same law and legal procedures as private citizens. 3. Supremacy of ordinary law: the fact that the English constitution was the outcome of the ordinary law of the land and was based on the provision of remedies by the courts rather than on the declaration of rights in the form of a written constitution. It is essential to recognise that Dicey was writing at a particular historical period but, perhaps more importantly, he was writing from a particular political perspective that saw the maintenance of individual property and individual freedom to use that property as one chose as paramount. 3. FA von Hayek FA von Hayek followed Dicey in seeing the essential component of the Rule of Law as being the absence of arbitrary power in the hands of the State. As Hayek expressed it in his book The Road to Serfdom (1971): “Stripped of all technicalities the Rule of Law means that government in all its actions is bound by rules fixed and announced beforehand.” Hayek, however, went further than Dicey in setting out the form and, at least in a negative way, the content that legal rules had to comply with in order for them to be considered as compatible with the Rule of Law. As Hayek expressed it: “The Rule of Law implies limits on the scope of legislation, it restricts it to the kind of general rules known as formal law; and excludes legislation directly aimed at particular people.” This means that law should not be particular in content or application, but should be general in nature, applying to all and benefiting none in particular. Nor should law be aimed at achieving particular goals; its function is to set the boundaries of personal action, not to dictate the course of such action. 1 Slapper and Kelly 2

Hayek was a severe critic of the interventionist State in all its guises, from the fascist right wing to the authoritarian left wing and encompassing the contemporary welfare State in the middle. His criticism was founded on two bases: (i)

Efficiency. From the micro-economic perspective, and Hayek was an was an economist, only the person concerned can fully know all the circumstances of their situation. The State cannot wholly understand any individual’s situation and should, therefore, as a matter of efficiency leave it to the individuals concerned to make their own decisions about what they want or how they choose to achieve what they want, so long as it is achieved in a legal way. (ii)

Morality. From this perspective, to the extent that the State leaves the individual less room to make individual decisions, it reduces their freedom.

4. Joseph Raz Some legal philosophers have recognised the need for State intervention in contemporary society and have provided ways of understanding the Rule of Law as a means of controlling discretion without attempting to eradicate it completely. Joseph Raz (‘The Rule of Law and its virtue’ (1977) 93 LQR 195), for example, recognised the need for the government of men as well as laws, and that the pursuit of social goals may require the enactment of particular as well as general laws. Indeed, he suggested that it would be impossible in practical terms for law to consist solely of general rules. Raz even criticised Hayek for disguising a political argument as a legal one in order to attack policies of which he did not approve. Yet at the same time, Raz also saw the Rule of Law as essentially a negative value, acting to minimise the danger that could follow the exercise of discretionary power in an arbitrary way. In that respect, of seeking to control the exercise of discretion, he shares common ground with Hayek and Dicey. Raz claimed that the basic requirement from which the wider idea of the Rule of Law emerged is the requirement that the law must be capable of guiding the individual’s behaviour. He stated some of the most important principles that may be derived from this general idea:  laws should be prospective rather than retroactive. People cannot be guided by or expected to obey laws which have not as yet been introduced. Laws should also be open and clear to enable people to understand them and guide their actions in line with them;  laws should be stable and should not be changed too frequently as this might lead to confusion as to what was actually covered by the law;  there should be clear rules and procedures for making laws;  the independence of the judiciary has to be guaranteed to ensure that they are free to decide cases in line with the law and not in response to any external pressure;  the principles of natural justice should be observed, requiring an open and fair hearing to be given to all parties to proceedings;

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the courts should have the power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the Rule of Law the courts should be easily accessible as they remain at the heart of the idea of making discretion subject to legal control; the discretion of the crime preventing agencies should not be allowed to pervert the law.

It is evident that Raz saw the Rule of Law being complied with if the procedural rules of law-making were complied with, subject to a number of safeguards. It is of no little interest that Raz saw the courts as having an essential part to play in his version of the Rule of Law.

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