Rule of Law

What is Natural Law?

system of law bounded by unchanging moral principles as the basis for all human conduct.

What does the Universal Declaration 1948 state

"It is essential,, that human rights should be protected by the Rule of Law.

What did Aristotle remark?

'the rule of law is preferable to any individual?

What is the Western Liberal View of the Rule of Law

Assumes the benevolence of ROL which controls the power of the state and protects citizens

Dicey recognised the importance of accountability, but required an element of proportionality how?

Not entirely absolute (Article 9 gives parliamentary privilege)

What is the substantive conception?

Promoted by the UN since 1948 referring to the content of the rules themselves as essential. The nature of law is determined on whether they promote or intefere with rights (what they cut)

What did Hayeck believe about certainty and consistency from the law?

Promotes economic efficiency as allows people to plan their lives based on predictable and certain laws. (that contrast will be enforced, sect-non accessible and restrospective do not know )

In 1959 what did Ivor Jennings criticise about Dicey?

'not concerned with clearing up the nasty industrial sections of the towns, but the liberty of the subject. The fact that 'Englishmen are ruled by the law and law alone' is not enough, and that the State as whole needs a system of regulation. (Philosophy v device of compliance)

Can a dicator adopt a substantive ROL?

(No give Nazi Statutes which ignore moral components) Absolute Monarch of Tonga believes by Divine Right, his interest are those of the people. (perspective?)

What were Dicey's conditions of the Rule of Law

1) No man is punishable are can be lawfully be made to suffer...except for a distinct breach of the law established in the ordinary legal manner 2)No man is over the law, every man and woman, whatever be his rank or condition, is subject to the ordinary law of the realm 3) The common law is the best protector of fundamental rights

What did Journalist, Peter Osborne remark in 2012 (Can terrorism be dealt adequately under ordinary criminal law, or should a separate division of the law develop?)

1) The effort to deport Abu Qatada to Jordan even though may face torture contravened the British Rule of Law 2) Frazz suggests unpopular individuals are those who need law the most, and if cannot be found guilty, then cannot be dismissed. 3) If was a menace (hate-preaching in favour of sucicide bombing) would have been declared so under the law and charged accordingly 4) disobeying the ECHR decision amounts to a 'betrayal of everything which Britain stands for'

What are two conditions, per Lord Donaldson

1983- Merkur Island Shipping Corp v Laughton First people must understand that...they should live their lives in accordance with the rules and all the rules. Secondly, they must know what the rules are

The English conception of formalisation has migrated to substantive adoption, given what proposals by the PM?

A British Bill of Rights outlining 'core values' (ECHR codifies Human Rights)

What is the Rule of Law?

A constitutional concept that highlights the supremacy of law over man as either a political theory laying down the fundamental requirements of the law, or as a procedural device.

What is Social contract theory

A hypothetical agreement between government and citizen which citizens confer power on the government, which is held on trust and subject to the condition that the government protect the right of the citizen

What are Lord Bingham's Eight Rules for the ideal rule of law?

Accessible resolved by applying the law applies to all protects fundamental rights public officials must use power reasonably system for resolution must be fair state must comply with international law obligations

Explain Joseph's Razz Knife Analogy

Approaches ROL from a morally neutrally standpoint citing a knife and its sharpness. A measure of its quality is its sharpness, but how sharp it is is no indication of its use (surgery or murder). Sharpness and the rule of law is morally neutral

What is the Marxist School?

As law is underpinned by the capitalist system (employment, industry regulation), these laws are flawed as promote an oppressive system. Some supporters argued that laws concerning housing/welfare provision are a sham concept that oppress the poor.

Obligation to obey the law?

Civil Rights movements are often seen as the legitimate mechanism to restore terms of the social contract.

What happened in R v R 1991

House of Lords upheld the conviction of a husband raping his wife arguing that legal immunity under the Doctrine of One Flesh are anachronistic.

What is the Traditional Oriental View?

Laws are abstract which cannot take into account the variety of possible situations and that the principles of equal respect and mediation offer harmonious solutions to society's problems.

What does the First Condition mean

Laws are neither arbitrary nor secretive nor retrospective, emphasising that the law requires both clarity and simplicity (overly complex legislation fear in Bad Law Report 2010) (Breaks social contract theory, as arbitrary laws are incapable of justification)

Why was Dicey apphrensive to discretionary power (JR arguments in this condition)

Statutes often entrust ministers and public authorities the ability (within limits) to choose if and what manner they exercise their power. He believed ROL excluded 'wide discretionary power on the authority of the govenrment'

What is the formal conception of the Rule of Law?

The manner in which the law was promoted, focussing on clarity and prospective, consistent laws

What did Granger v UK 1990 establish (Maxim of the Law as the Ritz, open to everyone, but not everyone can cover the costs)

The refusal of extending legal aid for the claimant to pursue an appeal was a violation of Article 6 (Right to Fair Trial)

What happened when the claimant to took the case to ECtHR (RvR)

claim that Article 7 (Non Retrospective Principle) had been violated, Court upheld decision in order to give effect to the principle of gender equality

Why did Dicey oppose a Bill of Rights and constitution protection (Statutes can overrule Courts, Parliament can overturn decisions)

led to the contest and violence of the French Revolution and American Civil War

Freedoms require simply the restrain of government whilst upholding socioeconomic rights....

requires positive action and intervention at considerable cost.

Opposition of Palm Tree Justice

where elders used to sit under the tree in the Bible making decisions. It outlines Rational Justification for special classes to receive special treatment (hygiene laws on all restaurants, but justify them on Indian ones?)