Rule of Law and Public Law

The rule of law is considered the most fundamental doctrines of the constitution of UK. The constitution is said to be founded on the idea of the rule fo law.

AV Dicey’s view on the rule of law cannot be ignored because of the lasting influence he has had. Dicey’s views were derived from his understanding of the nature of democracy in UK as ‘unitary and self-correcting in which the will of the people are expressed through Parliament, and in which Parliament controlled the government.

In setting out the rule of law, Dicey considered three distinct elements:

• No punishment may be inflicted on anyone other than for a breach of the law;
• Irrespective of rank and status, all men are equal under the law; and
• The rights and freedom of citizen are best protected under the common law.

The first principle involves the absence of arbitrary power on the part of the government and prevent it from making retrospective penal law.This means that no men is punishable except for a distinct breach of the law of the land. In order to comply fully with this requirement, laws should be open and accessible, clear and certain.

Under social contract theories, the individual citizen transfers his rights to the government. To express it in another way, the individual citizen owe allegiance to the Crown in return for protection of the Crown. The doctrine of allegiance incorporates the idea of obedience to law – both on the part of the citizen and the government.

Under the rule of law, the extent of the State’s power and the manner in which it is exercise is limited and controlled by law. This control is aimed at preventing the State from acquiring and using wide discretionary powers.

In Dicey’s view, inherent in discretion is the possibility of it being used in an arbitray manner and will be open to abuses.

If retrospective penal law is imposed, the individual will be placed in the position where his conduct was lawful at the time of his action but, subsequently held to be unlawful.

The court has always construed penal statutes narrowly and will be slow to find that Parliament intended to impose retrospective liability. If the Act of Parliament is expressed in language which is fairly capable of either interpretation, then the court would elect to construe it as prospective only.

In Waddington v Miah (1974), the House of Lords interpreted the Immigration Act 1971 which denied retrospective effect using Article 7 of ECHR which guarantees freedom from retrospectivity.

The second principle is Equality before the law. Dicey emphasise the notion that government itself is also subjected to law and that everyone shall be subjected to the law, irrespective of rank and positions. In the words Lord Denning in Gouriet: “Be ye ever so high, the law is above thee.”

The idea of equality before the law is subjected to so many exceptions. In so far as equal powers are concerned, it must be recognised that the police have powers over and above ordinary citizen (under common law and Criminal Evidence Act 1984). Ministers also do have power to enact delegated legislation and the government exercises prerogative powers. Members of Parliament have immunities not available to citizen. In the words of Sir Ivor Jennings, ‘No two citizen are entirely equal.’

In the view of TSR Allan, “The constitutional principle of the rule of law serves to bridge the gap between the legal doctrines of parliamentary sovereignty and the political sovereignty of the people … The rule of law therefore assists in preventing the subversion of the sovereignty of the people by manipulating the legal sovereignty of Parliament.”

The evidence for the notion of equality before the law is neither clear nor uncontentious. There remains room for doubt and arguments.

The third principle deals with the protection of rights under Common law. Dicey’s preference demonstrates a faith in the judiciary.

In Dicey’s view, the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (example: the rights to personal liberty and the Rights for a fair trial) is with us the result of judicial decisions.

The third limb of Dicey may look unsustainable nowadays. The enactment of the HRA 1998 which incorporates rights protected under the ECHR includes the obligations of the government to respect human rights (Article 1), Rights to liberty and security (Article 3), Rights to a fair trial (Article 6), and no punishment without law (Article 7).

It is essential to recognise that Dicey was writing from a particular political perspective. Dicey is a committed believer of free market operations and was opposed to any increase in State activity that would regulate the economy.

Dicey laid great emphasis on government by law, rather than by men.

In conclusion, the rule of law represents a challenge to State authority and power, demanding both that power be granted legitimately and that their exercise is according to law. The law is not autonomous but rests on the support of those it governs. Whilst the rule of law places law above everyone, it remains paradoxically subjected to the ultimate judgement of the people.

Posted by Maverick SM at 12:56 AM 11 comments

The Rule of Law and Relevance in Contemporary Society

In considering the meaning of the concept of “Rule of Law”, one is to immediately drawn into a consideration of the work of AV Dicey on the English Constitution.

According to Dicey, the rule of law was of the key features which distinguishes the English constitution from its continental counterparts. In setting out the meaning of the rule of law, Dicey considered 3 distinct elements:

1) The extent of the State’s power and the manner in which it exercise such power which should be limited and controlled by the law. This control is aimed at preventing the State from acquiring and using wide discretionary powers which are inherent in discretion and which lies the possibility of it being abused.

2) The second relates to equality before the law. No person should be above the law, irrespective of rank or class and the function of the State are to be subjected to the same law and legal procedures as ordinary citizens.

3) The thrid component relates to the fact that the rules of the English constitution were the outcome of the ordinary law of the land and were based on the provision of remedies by the courts, rather than on the declaration of rights in the form of written constitution.

Essentially, it must be recognised that Dicey was writing at a particular historical period and from a particular political perspective. Dicey is a committed believer of the free market operation and was opposed to any for of intervention by the State to regulate the economy. It is least arguable that at the time Dicey wrote his ‘Law of the Constitution’, he was trying to represent change which in fact had occurred in the UK polity.

Sir Ivor Jennings, in his book ‘The Law and the Constitution’ expressed that Dicey’s version of the rule of law means “that the State exercises only the functions of carrying out external relations and maintaining order”, which is not true as it would mean that if the State ought to exercise these functions only, it is a rule of policy for Whigs (Whigs were former political party).

Social thinker Friedrich Von Hayek followed Dicey in emphasising its essential component as the absence of arbitrary power in the hands of the State. According to Hayek in his “The Road to Sefrdom”: “Stripped of all technicalities, the rule of law means that government in all its actions is bound by rules and announced beforehand.”

According to Hayek, the rule of law implies limits on the scope of legislation, it restricts it to the kind of general rules as formal law; and excludes legislation directly aimed at particular people. Nor should law be aimed at particular goals.

In other words, the government has no place in usurping the authority of individuals by deciding their course of action for them. the job of law is therefore to set boundaries of personal action, and not to dictate the course of such action. Laws should also not be of particular in content or application, but should be general in nature, applying to all and benefiting no one in particular.

EP Thompson shares Hayek’s distrust of the encroachments of the modern State and he is equally critical of the extent to which the contemporary State has intervened and interfered with the day to day lives of its citizens.

Thompson is concerned primarily with the way in which State has progressively lopped branches off the ‘liberty tree’ by increasingly interfering with civil liberties and rights of individual citizens such as the increases in police powers. The point is that there are general process in which the State had increase their power and at the same time remove exisitng rights from individuals.

In ‘Whigs and Hunters’ (1975), Thompson analyses the evolution of the doctrine of the rule of law and conclude that: “the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me an unqualified human good”.

Other legal philosophers have recognised the need for, and have come to terms with State intervention in the pursuit of substantive as well as merely formal justice and have provided new ways of understanding the rule of law as a means of controlling discretion.

Joseph Raz took Hayek to task for disguising a socio-economic argument as a legal one, in order to strike at policies of which he did not approve as being contrary to the rule of law. Joseph Raz suggested that such reasoning was in danger of identifying the ‘rule of law’ with the rule of good law, that is, law of which Hayek approved. Joseph Raz recognises the need for the government of men as well as of laws and that the pursuit of social goals may require the enactment of both general and particular laws. To Raz, the law must be capable of guiding the individuals’ behavior and that it must be prospective rather than retroactive. The law should also be clear and open in order to enable people to understand their actions in line with them. Laws should also be realtively stable and that the judiciary independence should be guaranteed. To Raz, the principle of natural justice should be observed and that the courts should have power to review the way in whichy the other principles are implemented.

However, it can be seen that contemporary State was no longer satisfied simply to provide a legal framework for the conduct of economic activity, but was increasingly, becoming actively involved in the direct co-ordination and regulation of economic activity in the pursuit of its own goals. The replacement of the free market by a planned economy has major consequences for the form of law, as clearly stated, and fixed general laws are replaced by open textured discretionary legislation, empowering State functionaries to take action as they considered necessary.

It can be noted that where the rule of law are reduced to a matter of mere parliamentary procedure, as arguably, as has been the case in the contemporary situation of the UK, it does not go far in protecting individual rights and general civil liberties from legislative encroachment. It is, perhaps, for this reason that there has been the substantial recent pressure for the UK to have either a written constitution, or to incorporate the ECHR into its law as a means of entrenching civil liberties and providing the safeguard that, arguably, the strict version of the rule of law used to provide.

It is argued that there remains a need for the limitation and control of State activity which, arguably, the rule of law provides, at least in certain formulations.

It can be seen that the HRA 1998 had reflected a move towards the entrenchment of rights recognised under the European Convention. The HRA 1998 has profound implications for the operation of the English legal system. In Lord Denning’s word:

“No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses – to the dismay of all.”

(The Independent, 16 July, 1990)