RULE OF LAW - Rule of law essay PDF

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RULE OF LAW Law exists in a society for the purpose of regulating a civilization. It provides a binding framework to any society, for the resolution of their conflicts and help in maintaining harmony.

Rule of Law, can be interpreted in two ways: Political or philosophical but its meaning is not precise as supported by DM Walker. Rule of law is subjective and has more than one definition. It may mean different things to different people at different times. Rule of law can be traced back to time of Socrates, Cicero, Plato & Aristotle (philosophical view).For liberalists it means freedom for all under the law while for Marxists theorists like EP Thomson it means law represents interests of the powerful (political view)

Acceptance of a certain form of rule of law has varied nation to nation. For example, in Marxist States such as North Korea, people have been living peacefully under the 3 generation rule of the Kim family, which is nothing less than a form of dictatorship. People have accepted the government there and they believe ‘rule of law’ exists.

Even S 1 of the Constitutional Reform Act 2005; does not define what rule of law exactly is. For many theorists the definition is that any executive, public official or any person with authority may exercise its powers only if authorized by law. That law should not only legitimize use of power but also protect rights of the people.

Modern liberal democracies that have had a break from the past require something more than just the bare minimum form of rule of law. Believers of democracy want the ‘law and government’ to exhibit greater qualities. What those qualities should be has been argued by many theorists. Theorists such as Lord Bingham and Joseph Raz focus on qualities of law such as: equality before the law; clarity, stability and preciseness; independence of the judiciary and insurance of optimal performance of the judiciary. The focus seems to be on proper procedure of law, which has also been supported by the courts . (Merkur v.

Laughton) (Sussex Justices, Ex parte McCarthy)(Ridge v. Baldwin)

The focus on procedural aspect for some is not enough. It is argued that the law will miss its point if the only concern is that it has been passed through proper parliamentary procedures with adequate checks and balances. One of such theorists is Professor Fuller who argues that for a legal system to hold some worth for recognition by the realm, it must serve their needs. He suggests that it is the substance of law that matters more. This aspect takes into consideration how zealous the law makers are, are they really representing interests of the people in the Parliament, or are they working for their vested interests.

John Rawls preposition for rule of law echoed that of Dicey in Theory of Justice. He said that rule of law is obviously closely related to liberty. The essence of a just legal system is a regular and impartial administration of public rules. Several requirements should be met: rules of law must only command actions which are possible; those who enact laws must do so in good faith; like cases must be treated alike. Like Dicey, Rawls also states that there is no offence without a law. Hence, law should be general and the legal system should respect natural justice.

For Max Weber a free legal system was accompanied by State which limited itself to establishing a clear framework of social order and left individuals to determine their own destinies in a free market system.

Albert Venn Diceys account on Rule of Law is perhaps the most logical to fit in the assessment of the importance of Rule of Law in the UK today. As he says, there should be absence of arbitrary powers. Power corrupts, absolute power corrupts absolutely. For there to be proper rule of law, it is important for separation of powers to exist. The organs of the state must not exceed their powers assigned to them by the office they hold, they must not wrongfully exercise a power which does not exist under the law. Examples: Malone, Burma Oil, Proclamations and Entrick v. Carrington.

Furthermore, rule of law ensures there is equality before the law. In the UK, all officials and ordinary must be tried in the ordinary courts of law. Analyzing the current status, this has largely come into criticism by Sir Iver Jennings who says that administrative tribunals and their existence marred the idea of equality before the law. Even members of Parliament are immune from the law of defamation, or in fact they are the law-makers and can easily draft the laws to exclude them from falling under its ambit [(R) Black v.

Secretary of State for Justice].

The rule of law also establishes supremacy of the Parliament and also declares fundamental rights. The Parliament must be supreme; laws made by it must not be challenged by anybody. The granting of fundamental rights is now covered under the

Human Rights Act 1998. It ensures that the fundamental rights of an individual are not violated by the public bodies, since it is the government that is the ‘guardian of the realm’.

(Belmarsh) (Bancoult) (Bellinger v. Bellinger)

It can therefore be seen that the Rule of Law is a structure which binds together all fundamentals of English constitution. Such as separation of powers, Parliamentary sovereignty, Human Rights, functions of the organs etc.

It is evident from cases like (M v Home Office) that courts have protected rule of law. In (A v Secretary of State for the Home Department )the powers of the state to detain nonUK nationals without trial under the Anti-terrorism, Crime and Security Act 2001 were considered. This concerned individuals who were considered to be a security threat in the United Kingdom, but could not be deported to their home countries because of the risk that they would face torture there.

The 2001 Act was challenged under the HRA on the grounds of discrimination under Article 14 of the ECHR, because it only applied to non-UK nationals. The House of Lords accepted the right of the government to conclude that the public emergency justified the detention, but ruled that it was applied in a discriminatory manner.

In ( Jackson v A-G), Lord Hope stated: It is no longer right to say that [Parliament’s] freedom to legislate admits of no qualification...the rule of law enforced by the courts is the controlling principle upon which our constitution is based.

According to a report released by the World Justice Project (WJP) named as WJP Rule of Law Index 2017-2018 which measures rule of law adherence in 113 countries worldwide, the UK dropped one position for overall rule of law performance (from 10 in 2016 edition) to 11 out of 113 countries in the 2017 edition. Significant improvements were seen regarding Regulatory Enforcement. Regardless of the fact that there are many meanings of rule of law around the world, law and order in the UK is thriving but there is always room for improvement.

Delhi Declaration 1959: “The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality”

To conclude, it is both idiosyncratic and deeply human that the concept of the rule of law has endured for centuries without any permanent definition. This perhaps can be attributed to N W Barber’s contention that constitutional theory is essentially political theory, and so discourse about the rule of law is at base an argument about the sort of country we would like to live in. Sadly, public law is not so much about the rule of law but law of ruling, and so the concept will always remain contested whether the UK is governed by a Stuart monarch or former television PR director. All that can be hoped is that the rule of law remains an overriding principle amongst the public....