The rule of law

Implications of Rawls

Treats citizens as having rights and freedoms MOre ppl based

Belmarsh 9 case

9 men were detained under the Anti-terrorism, Crime and Security Act 2001 wthout a fair trial. This legislation only applied to non- British nationals and allowed indefinite detention The HOL ruled that this legislation was incompatible with ECHR and allowed the prisoners appeal

What is logical positivism?

A philosophical movement which puts forward that only statements that can be empirically verified are meaningful Impacted by Hume's empiricism, scientific development and Wittgenstein's Tractatus Therefore he believed that the validity of law is not related to morality

Raz proposed what conception of the rule of law?

Formal conception of the rule of law

Principle 3 Dicey: Individual rights are protected by Common law

Had faith in the independence of judiciary and Tennyson's idea from 'Precedent to precedent' the law evolves.

Principle 2 Dicey : 'no man is above the law'

Principle that establishes that every citizen is responsible for their actions in society. Case example R v Charles Nall- Cain (Lord Brocket) Lord prosecuted for his crimes despite his position in society.

Procedural rule of law

Right to a fair trial - unbiased juries that are not allowed to access materials outside of the case. No person can be imprisoned without trial - Belmarsh Prisoner case in Supreme Court. A civil system that is free from corruption and untoward influence by media and politicians - trusted around the world.

Case which illustrates that the law has moral qualities

RvR rape case substantive application of the law

Dr Thomas Fuller

'Be you never so high that the law is above you' Supports Dicey idea of no man is above the law

Principle 1 Dicey: No punishment except for breach of the law

'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law' (restatement of Lockean principles) Police cannot arrest a citizen randomly under a fake law there must be legal justification. Entick v Carrington 1765 -King's messengers broke into Entick's house but this was found to be an illegal action. The state's power must be controlled by the law. NO Arbitrary power. This means that the government cannot have random powers

A. V Dicey had 3 main elements to the rule of law

- No punishment except for clear breach of the law - 'No man is above the law' - Individual rights are protected by Common law

What is the "rule of law"?

- The Principle that everyone must follow the law. Regardless, of your social, political or economic standing in society. No one is immune - Also, the process by which the laws of the country are enacted, administered and enforced must be fair.

Aristotle's ideas were developed by Dicey to create?

A.V Dicey's Rule of Law definitions

The rule of law has its origins in ?

Ancient Greece (although its argued that other regions also)

Dworkin

Approach is rights based Argues that judges shouldn't just apply rules but give principles to support decisions

Antoine v Sharma 2006 UKPC 57

Chief justice of Trinidad and Tobago sought a judicial review to try and avoid prosecution I- Whether to permit a judicial review or to allow the ordinary criminal process to occur P- Criminal law of the land should apply. NO immunity to high rankings members in society per lord bingham

However, RAz didnt want the ROL to be confused with?

Democracy, justice and equality. He thought that there was a wealth of literature to define these topics. He was concerned with ensuring the way laws were enacted fairly not actually moral He desires to keep legal questions separate from broader issues of political theory

Implications of Raz

Governments could follow his rule of law and still persecute people Raz admits this. Any law passed through parliament would meet his definition of the rule of law e.g Witchcraft Act 1735 which allowed imprisonment of anyone claiming to have magical powers

Issues with the Rule of Law in the UK

Issues with the Rule of Law in the UK - It's very expensive to bring a civil case to court and legal aid cuts mean those on low/medium incomes might find this difficult, limiting access to justice for some. - Sentencing guidelines allow for some variation in sentencing based on the circumstances of each case. This may seem ethically right, but is contrary to the idea that everyone should be treated the same under the law.

Greek Philosopher Aristotle states

It is better for the law to rule than any of its citizens

Lord Bingham criticism of Joseph Raz

Law cannot be simply what is dictated by political authority. For example, in the USSR the law was enacted with support of proletariat resulting in the killing of millions of ppl.

Logical positivist Joseph Raz 3 main points

Law should be general, open and clear Judiciary should be independent Courts able to review state powers

Dworkin proposed a

Substantive concept on the rule of law

Hayek

Supporter of DIcey 'Government in all its actions is bound by rules fixed and announced beforehand' Argued for the independence of the judiciary to protect citizens from government Argued to reduce the size of government

Criticism of the Rule of Law (Diplomatic immunity)

Surely, this undermines the principle of the Rule of Law. As Diplomatic immunity codified in Vienna Convention on Diplomatic Relations 1961 doesn't allow a diplomat to prosecuted unless immunity is waived by the diplomats country. E.g In 2002 a Colombian diplomat had is immunity revoked by Colombian for manslaughter

Other Dicey ideas

The courts rather than the government should determine whether the law was broken -The law should have forseeability & predictability so ppl know where they stand

Professor Judith Shklar critique of the Rule of Law

The expression may 'have become meaningless thanks to ideological abuse and general over-use'

Sir John Rawls

The rule of law is held to encompass an attachment to freedom, certainty and fairness. The first of these elements is the substantive component of the rule of law, while the second and the third bring in the more *traditional attributes of the formal rule of law.

Criticism of Dicey

Theoretically, Parliament can pass a law on whatever subject they wish, and this can include granting arbitrary power to the state. Dicey's view of the rule of law was based on an abstract idea and it is therefore difficult to apply in real life situations. BLUE EYED BABIES EXAMPLE

A way to refute Dicey's critics

There's a difference between rule by law and the the rule of law which illustrated clearly in Kafka's The trial