The rule of law and why I think it matters

It’s one of the most important principles in our constitution

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Some people say the rule of law is a mere fallacy, to make politicians think that they are doing what they ought to do.

I don’t agree. The rule of law is still one of the most important principles in the United Kingdom’s constitution, and there is real meaning behind this doctrine.

First, a quick overview of the rule of law. The definition that prevails over others is that preferred by Dicey. He says there are three guiding principle of the doctrine.

The first principle is that a man may be punished for breach of law, but he cannot be punished for anything else. The second principle is that equity is before the law. The last main principle is that the constitution is developed by the ordinary law of the land, which can secure the rights of individuals.

This doctrine is effective in providing some proper structures of control for politicians. Although there are some new laws made by acts of parliament that provide more powers to parliament, there are still some restrictions on those powers.

The doctrine of the rule of law also makes sure no one in the state can be above the law, and the law applies to both citizens and politicians in the same way. In the famous words of Lord Denning in Gouriet:

Be you ever so high, the law is above you.

No doubt, in some circumstances, the rule of law is not reflected in the English legal system, for instance, the government can make some laws in the emergency situations. Though this may cause some damages towards the doctrine of the rule of law, these are very small exceptions and — as Denning’s statement reflects — the rule of law is otherwise absolute.


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Some scholars claim the law does not apply equally to everyone because there are some privileges and immunities given to the crown. In fact, their privileges and immunities are gradually decreasing through the ages. Plus the Crown Proceedings Act 1947 made suing the Crown easier.

And then there’s the separation of powers. This doctrine also serves as one of the most important principles in the constitution.

The principle says there are three branches in the constitution: they are parliament (legislature), the executive (government) and the courts (judiciary).

Some, including one of Legal Cheek’s recent Journal contributors, have said the separation of powers isn’t relevant in the UK anymore, but I still think this doctrine is effective in providing its check and balance functions.

Legislature, executive and judiciary are distinguishable nowadays. Parliament plays an important role in scrutinising the executive, so as to ensure the executive branch would not abuse their powers. Therefore, the doctrine can ensure the power of the government is checked and the powers between the executive and legislative are balanced.

Then the powers of those politicians are controlled and monitored by the judiciary (the courts). Under the doctrine of the rule of law, there is no one in the state above the law, which implies that those politicians need to follow and obey the laws. Also, there are some laws that set some restrictions to the politicians in order to prevent the abuse the powers. For example, the court may be asked to consider whether a piece of secondary legislation is ultra vires (beyond its powers) or not. Therefore, the laws that are made by government ministers will be checked by the courts, so as to ensure that there is no power being abused by them.

So, in conclusion, both doctrines can fulfill their own role in the constitution. The rule of law ensures law is above everyone, and the separation of powers enhances the check and balance functions of the legislature, executive and the judiciary.

Charles Mak is a recent law graduate from the University of Sussex.

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14 Comments

Mark

Lord Bingham wrote a very interesting book on this subject which largely agreed with Dicey’s definition which I’d recommend for any law student to read (The Rule of Law – Tom Bingham)

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Lord Lyle of the Thing.

Big it up for Charles Mak.
Unfortunately the rule of law was abolished with the abolishment of the post of Lord Chancellor.

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Rule of Lawyers

Would have been good to see discussions of alternative conceptions to Dicey’s Rule of Law. Particularly, while some like Dicey and Raz stick to a formal conception of the Rule of Law, what about those who go further? What about Dworkin’s substantive conception? Or Allen’s contestation that formal conceptions of the rule of law are themselves based upon substantive foundations meaning that the dichotomy between form and substance breaks down?

There’s so much more to the Rule of Law than Dicey, and it’s hard to endorse or reject any particular viewpoint without a fuller understanding of what the Rule of Law actually is.

Statements you’ve made like “No doubt, in some circumstances, the rule of law is not reflected in the English legal system, for instance, the government can make some laws in the emergency situations” are at best misguided, and at worst erroneous, because they assume a purely formal approach.

“The definition that prevails over others is that preferred by Dicey.” Why? This is absolutely not self evident.

I could go on, but I won’t. If you’re going to evaluate an open textured concept, you need to give it flesh. Otherwise, your ideas can’t possibly stick.

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A Constitutional Theorist

Dicey is incredibly parochial. As a matter of Constitutional Theory there are no fewer than eight conceptions of the ‘rule of law’ – most recent scholarship is in agreement that the term is a mere slogan which is incapable of holding any normative weight.

The rule of law only operates as a coherent concept when the state is conceived of entirely as a norms structure – the image of the state as societas. However, as Michael Oakeshott and Martin Loughlin have eruditely demonstrated, the disregarding of the state as a corporate body which pursues policies – the image of the state as universitas – is doomed to remain a purely academic exercise unfounded in reality.

I would strongly recommend Loughlin’s chapter on this in ‘The Idea of Public Law’.

I cannot fault this chap from presenting the article he has, but really Legal Cheek, these do not stand up to any species of academic scrutiny.

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Ciaran Goggins

Constitution? There is none. Unwritten? Will get you as far as an unprinted ten pound note. Rule of law? Which one? The law, in its majesty, allows both rich and poor alike to starve.

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Lord Lyle of Law

It is so refreshing to find the evolution of intelligent life in here, but there is no need to over egg it. The rule of law simply means that the Thing (parliament) meets to declare the law, with a law speaker (Lord Chancellor) present as head druid and the law is then administered to all without fear nor favour by an independent judiciary headed by the law speaker.
One may compare this to the rule of tyranny, which precipitated the early law book, the Magna Carta. I would recommend reading it. It’s only 28 pages or so long.
There is no point in entering into colloquy with LC as they are journalists and not lawyers.

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