Rule of Law
Dicey's first meaning of the Rule of Law
No man is punishable or can be lawfully made to suffer in body or deprived of their goods unless they had violated the law which has been established in an ordinary way by an ordinary court
Dicey's Second meaning reinstated
Politicians and officials are bound by the law as administered by the ordinary courts, although that law may be different from the law applying to private individuals.
History/development of the rule of law
(Not sure if I need to write about this?) The holocaust repulsed the international community and prompted new forms of international regulations through the united nations. In 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights, which signalled the beginning of the international human rights movement. This movement began as a reaction to the atrocities of Nazi Germany but it soon injected new life into the ideal of the rule of law. Its gathering momentum increasingly imbued the rule of law with substantive content. In the years that followed, legal positivists launched their attack on natural lawyers but failed to demolish the linkage between law and morality. The international human rights movement which gathered momentum last century reinforced Fuller's thesis that law and morality were inextricably entwined which gained broad acceptance writers agree that there will always remain disagreement around the margins over the core content of the substantive rule of law. Four modern statutes have endorsed the rule of law but none has attempted a definition of it.
Applications of Dicey's Doctrine : Second meaning :
- the rule of law requires that all public action must be positively authorised by law, regardless of the crown's legal personality - the objective of this meaning is to hold public bodies to their authorised public purposes - Entick v Carrington established that a positive rule of statute or common law must confer requisite power. Camden CJ held that a minister of the Crown had no power to issue general warrants for the arrest and search of persons on suspicion of sedition. A person who invades another's property must show, "by way of justification, that some positive law has empowered or excused him". The spirit of this case flows through many of our common law rights and freedoms. This case established that public powers are an existence as a matter of law, not fact. - Fitzgerald v Muldoon is a landmark rule of law decision. It was held that the Prime Minister had violated art 1 of the Bill of Rights 1688 (Eng) - In the 1975 election campaign, the National opposition promised under a National Government the repeal of Labour's superannuation scheme. Three days after Robert Muldoon was sworn in as Prime Minister, he announced that the compulsory employee/employer deductions and contributions under the New Zealand Superannuation Act 1974 would cease from that day. The Chief Justice declared that the Prime Minister had suspended Parliament's law without its consent in breach of the Bill of Rights
What are Joseph's five elements to The rule of law as a substantive and normative concept
-the rule of law is a fundamental requirement of civil society; -the rule of law is a substantive and not merely procedural concept; -the rule of law is a normative concept for the guidance of public action; - the rule of law is a supranational concept that transcends national boundaries; and - the rule of law is the foundational norm and ultimate principle of legality for Western political systems.
Applications of Dicey's Doctrine : First meaning :
??? CCSU v Minister for the Civil Service Minister for the civil service issued an instruction to the effect that the terms and conditions of the civil servants to exclude membership of any trade union. This instruction was issued without prior consultation from the staff. The appellants applied for judicial review of the minister's action. Their lordships held that the requirements of national security outweighed the duty of fairness in this case and that the government must have the last word in such matters. Ratio: The exercise of a prerogative power by the executive may be subjected to judicial review but where national security is at stake judicial review is not available.
Normative concept for the guidance of public action
A normative concept to the rule of law is the injection of morality into the concept of the rule of law as a requirement for democracy which enforces citizen's moral and political rights and operates anterior to the positive laws of the state Fuller promoted the normative concept as an essential requirement of legal norms. He proposed that it would be contrary to the essential nature of a legal system to enact secret/retrospective/unreasonable laws. Lord Steyn advocated the inner morality of law in his belief that the rule of law was a norm of institutional morality that addressed the moral dimension of public power. Of course legal positivists object to the normative concept of the rule of law on the basis that when the rule of law is invested with the normative concept, the rule of law becomes uncertain New Zealand has endorsed and affirmed the rule of law in three modern statutes but has still made no attempt to define it. - Constitutional Reform Act 2005 - declared that the Act does not adversely affect "the existing constitutional principle of the rule of law" - the Supreme Court Act 2003 - affirmed New Zealand's continuing commitment to the Rule of Law - the lawyers and conveyances Act 2006 enjoined all practising lawyers to "uphold the rule of law" - Policing Act 2008 - New Zealand to be a "free and democratic state under the rule of law" For each of these mentions of the "Rule of Law" under statute, not one has attempted to define it, Lord Bingham gives the argument that it is judicial responsibility to define the term which should in any case by left open because it should have the ability to evolve over time and that the Rule of Law acquires determinate meaning when it is contextualised in actual cases and factual situation The common law however, has given a concrete definition on a case by case basis - R v Secretary of state for the Home department In this case, officials purposefully withheld communicating to the appellent a decision declining her income support "[E]ven in unprepossessing cases, fundamental principles must be upheld. The rule of law requires it." thus the rule of law in this case meant the right to be informed of an adverse decision - R v Director of the Serious Fraud Office "The surrender of a public authority to threat or pressure undermines the rule of law."
The rule of law as a prescription for government
Aristotle: "The rule of law is preferable to that of any individual." See Joseph (4th ed), at 154
Dicey's third meaning reinstated
Common law freedoms, while they must yield to legislation, embody essential values that warrant preservation even as against the formal superiority of the legislature.
Applications of Dicey's Doctrine : Third meaning :
Dicey's third meaning emphases the enduring importance of common law values. The common law through bills of rights or other such instruments promotes observance of the rule of law. Common law rights embody fundamental values that are now enshrined in modern international human rights instruments and bills of rights. In his celebrated "rights" dicta, Sir Robin Cooke questioned whether some common law rights "lie so deep that not even Parliament could override them"
The evolution of the rule of law under the Westminster System
Genesis of "due process" and rule by consent. The historical understanding of the rule of law emphasised due process and formal characteristics of law. This understanding can be traced back to before the Magna Carta 1215. The Magna Carta was a peace treaty between the Monarch and the people and was the first general declaration of the rule of law. It declared that the King may not punish imprison or coerce the subject in any arbitrary manner, it also declared that no man shall be put out of land, imprisoned, disinherited or put to death without being brought in answer by the due process of the law. Chapter 3 of the Statute of Westminster 1354 conformed the magna carta. The Petition of Right 1627 and the Bill of Rights 1688 were adopted in settlement of the constitutional conflicts fought against the Crown in Parliament and the courts. Chief justice of the Common Pleas, Sir Edward Coke advocated common law judges as means to determine the limits of the royal prerogative. He said that the king must be under god and the law and thus vindicated the supremacy of law over the executives. The Bill of Rights 1688 ended the stuart Kings claim to rule by prerogative right. The monarch was compelled to govern through Parliament and to accept the independence of his or her judges under the Act of Settlement 1700 Dicey: Entick v Carrington established that a positive rule of statute or common law must confer requisite power. Camden CJ held that a minister of the Crown had no power to issue general warrants for the arrest and search of persons on suspicion of sedition. A person who invades another's property must show, "by way of justification, that some positive law has empowered or excused him". The spirit of this case flows through many of our common law rights and freedoms. This case established that public powers are an existence as a matter of law, not fact. Prohibitions del Roy - Prohibitions del Roy established that, although justice was dispensed in the king's name, judicial power lay with the judges. Case of Proclamations (1610) 12 Co Rep 74
The rule of law as a fundamental requirement of civil society:
History is littered with regimes that have abandoned the rule of law and imposed their will through force. Totalitarian regimes typically suppress political resistance and commit innumerable human rights abuses. Lord Steyn wrote, "the rule of law utterly rejects the instrumentalist conception of law that enables an oppressive regime to attain its aims by the use of law". The rule of law is a fundamental requirement of civil society because it means an absence of arbitrary power. In 1948 following the atrocities of the Holocaust, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights, which signalled the beginning of the international human rights movement. This document injected new life into the ideal of the rule of law. Its gathering momentum increasingly imbued the rule of law with substantive content.
Dicey's second meaning of the Rule of Law
In terms of equality, no man is above the law, Regardless of what an individual's rank is, he/she is subjected to the law and is bounded to the jurisdiction of the ordinary courts. This denotes that state officials do not have special privileges/protections from the law
Dicey's first meaning of the doctrine of the rule of law that "[T]he absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government..; a man may with us be punished for a breach of the law, but he can be punished for nothing else." has been criticised as a bit unrealistic because it contends that many of the statutory powers of modern government are arbitrary which is certainly not the case as they are needed to control the scope and application of administrative discretions. The law does this in four ways - internal statutory controls - external statutory controls - judicial review - through Parliament and a free press
Internal statutory controls: - these circumscribe the scope and exercise of public powers. Failure to comply with them will invite challenge in the courts. Judicial review - The law of judicial review operates as a disincentive for decision-makers to misapply statutory powers - the court reviews decisions on the grounds of illegality, unreasonableness, and procedural impropriety - CCSU v Minister for the Civil Service is an example of where the exercise of perogative power by the executive was not subjected to judicial review because national security was at stake. Their lordships held that the requirements of national security outweighed the duty of fairness in this case and that the government must have the last word in such matters. - Anisminic Ltd v Foreign Compensation Commission, the courts strictly interpret privative clauses meant to remove judicial review of public decisions. The courts presume that Parliament does not intend these clauses to protect from review errors of law that materially influence the outcome of decisions. (Re Racal Communications) - Bulk Gas Users Group v Attorney-General - Cooke J said that a decision is not protected if it involves an error on a question of law, which the authority is not empowered to decide conclusively. - H v Refugee and Protection Officer a privative provision does not prevent scrutiny of a decision based on an error of law on the part of the decision-make External statutory controls - External statutory controls operate under the general law to ensure minimum standards of decision making throughout the public sector, these include the ombudsman Act, Official information act, Privacy Act, NZBORA and the human rights act Political controls - Government ministers exercise a supervisory responsibility over their departments and are politically accountable through Parliament and a free press
What does the rule of law do
It prescribes the formal requirements of legal norms, operates as a principle of institutional morality and it imposes discipline in public affairs. It identifies standards of liberty and justice for the guidance of public action and limits the exercise of public powers in accordance with their mandated purpose. The concept promotes ideals of personal autonomy and limited government so that all citizens may recognise their full potential
What does the rule of law seek to reconcile?
The concept of the rule of law seeks to reconcile organised state power and personal autonomy
the rule of law is a supranational concept that transcends national boundaries
The holocaust repulsed the international community and prompted new forms of international regulations through the united nations which signalled the beginning of the international human rights movement. This movement injected new life into the rule of law for it provided impetus for a supranational concept of the rule of law. The supranational concept combines the correct organisation of the state and a just criminal process with a range of rights and freedoms. Most common law jurisdictions in the post-war era have developed bills of rights modelled on the substantive declarations of the post-war international human rights instruments. Universal instruments adopted by the international community are linked to the rule of law for the rule of law protects human rights with it's two clear objectives - imperative to maintain civil society - need to safeguard rights and freedoms ...
Dicey's first meaning reinstated
The powers of politicians and officials must be authorised by law, although such law may permit broad administrative discretions. Judicial review is a necessary corollary of the rule of law for controlling administrative error or abuse.
Dicey's Third meaning of the rule of law
The principles of the constitution are the result of the ordinary law of the land. Decisions made by judges directly resulted the principles of the constitution which concerned the rights of the people this denotes that Dicey believed the common law affords greater protection to the citizens than a written constitution
Introduction
The rule of law is the sentinel of any constitutional government. Lord Bridge of Harwich has said that there is no principle more basic to any proper system of law than the maintenance of the rule of law. The concept of the rule of law seeks to reconcile organised state power and personal autonomy. The concept promotes ideals of personal autonomy and limited government so that all citizens may recognise their full potential It is used as a prescription for governemnt
the rule of law is the foundational norm and ultimate principle of legality for western political systems
The rule of law means an absence of arbitrary power. The rule of law recognises the dependency of Civil society on national governance and coercive force. Man stepped out of the lawless existence of state of nature to obtain the protection of organised state power which in turn instated protections and securities. The guarantee and freedom of liberty under the rule of law allows citizen's to lead meaning and autonomous lives and realise their individual potential However, Governments holding power in trust for the people, must be constrained by law, lest they trample upon the freedoms and liberties they were bidden to uphold. Common law jurisdictions have moved away from constitutional absolutism to that of controlled constitutionalism where there is a starting and end point to parliamentary power. In New Zealand and the United Kingdom, which lack written constitutions, the rule of law substitutes as the normative justification for the enforcement power for judicial power to 'disapply' legislation. Lord Steyn said the rule of law is a defence against legislative attack on the fundamentals of civil society. Lord Hope likewise proposed that the rule of law as "enforced by the courts" was the "ultimate controlling factor", against which all laws were to be judged. These reserve powers of the courts are invoked as a last resort when exceptional circumstances madate exceptional action. Lord Woolf has commented that these reserve powers are "no more than necessary to enable the rule of law to be preserved" Need more on this I think?
Criticisms of Dicey's second meaning of the rule of law
There is are legal inequalities present between the government and the governed. - Judges are not liable for things said in their office, - MP's enjoy privileges of free speech, and self regulation with which the courts will not interfere - the security intelligence service has exceptional powers of surveillance and interception of private communications, - the police have special powers of arrest, search and seizure - local government officers have rights of entry onto private property under numerous statutes - s27 Interpretation Act 1999 - No enactment binds the Crown unless it expressly provides to the contrary This meaning was also meant to demonstrate Britain's common law superiority over the French system of administrative justice. However, administrative tribunals operate in most areas of public and commercial activity and are necessary to settle disputes between individuals and government, determine applications, authorise particular Acts and regulate commercial activity
Criticisms of Dicey's first meaning of the rule of law
There is confusion about what constitutes "regular law' Dicey sees as being supreme/predominant to arbitrary power Dicey believed 'wide discretionary authority' was contrary to the rule of law, this however is unrealistic because discretionary authority is needed for many of the statutory powers of modern government. The focus today is not on removing administrative discretions but rather controlling their scope and application. The law controls the exercise of discretionary power by internal and external statutory controls, judicial review, and through Parliament.
The rule of law is a substantive and not a merely procedural concept
This is a debate between the legal positivist versus natural law theories. Legal positivists depict the rule of law as a procedural concept whereby public action is authorised by law and law is an autonomous body of rules which must be general, prospective, accessible, stable and certain. Legal positivists contend that the rule of law should be separated from legal questions from broader issues of political theory and social justice so as to not 'empty the concept of any independent meaning and reduce it to "ruling class chatter"." Natural law theorists oppose the legal positivist theory on the grounds that when the law is emptied of moral content it cannot distinguish between good and evil and may be manipulated by ideologues used to justify atrocities. Natural law theorists advance three reasons why the rule of law must embrace more than purely formal requirements: - to allow totalitarian regimes to claim the mantle of the rule of law would discredit the concept as a means of social regulation - a legal system emptied of moral content cannot command a general duty of obedience to the law - respect for elementary considerations of humanity requires the rule of law to afford protection against pernicious, invasive or degrading laws
Criticisms of Dicey's third meaning of the rule of law
This meaning emphasises the superiority of common law over constitutional codes for the protection of rights. However, this meaning lacks application to countries with written constitutions and bills of rights and is irreconcilable with Parliament's legislative supremacy because Parliament can use its absolute powers of legislation to abrogate the most cherished common law rights
The rule of law as a prescription for government
the rule of law means an absence of arbitrary power, Aristotle wrote, "the rule of law is preferable to that of any individual" The rule of law developed as the sovereignty of God over individuals weakened and natural law was replaced by legislative power vested in Parliament and Judicial power vested in the court with the executive being the monarchy. Following the Glorious revolution the British crown transitioned into a constitutional monarchy. John Locke writing around this time saw that individuals stepped out of the state of nature and into civil society, subjecting to authority to legitimise government to preserve their individual rights. The rule of law in this organised society replaced anarchy with protections and security. De Smith defined the rule of law as the powers exercised by politicians and officials which must have legitimate foundation, be based on authority conferred by the law and the law should conform to minimum standards of justice. The guarantee of freedom and liberty enables citizens to live meaningful and autonomous lives and realise their full potential, however, there is a need for restraint for governments holding this power in trust for the people. Joseph states the most crucial question facing Westminster constitutional scholarship is whether to recognise constitutional limits on the power to legislate. Sir Robin Cooke has stated that "some common law rights are so deep that even Parliament cannot override them." This sentiment was later echoed by the House of Lords in the Fox Hunting case. Lord Hope in this case stated ""The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based." Essentially this means it is the responsibility of the courts to define the limits of Parliament's legislative autonomy and that the rule of law is the ultimate principle of legality. The rule of law is clearly a prescription for government because (as recognised by Joseph) it operates as a shorthand for the ideals that identify the modern liberal democracy. When guidance is sought in public affairs, governments, judges and officials turn to the rule of law. Lord Steyn recognised this "In such exceptional cases the rule of law may trump Parliamentary supremacy." such cases could occur if Government attempted to commit a legislative attack by enacting laws which might disregard human dignity, attempt to extend life of parliament or attempt to ouster or tamper with the role of the courts. In New Zealand and the United Kingdom, which lack written constitutions, the rule of law substitutes as the normative justification for the enforcement power for judicial power to 'disapply' legislation. Lord Steyn said the rule of law is a defence against legislative attack on the fundamentals of civil society. Lord Hope likewise proposed that the rule of law as "enforced by the courts" was the "ultimate controlling factor", against which all laws were to be judged. These reserve powers of the courts are invoked as a last resort when exceptional circumstances madate exceptional action. Lord Woolf has commented that these reserve powers are "no more than necessary to enable the rule of law to be preserved"
