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Rule of Law

Intro
Generally, the rule of law is the principle that no one is above the
law and treated equally among citizens. Laws are made to maintain law
and order in our society and provide a harmony environment for the sake
of progression of people.1 It means government under the law because
the government is subject to the law.2 Case for this evidence in the UK
legal system is M v Home Office (1994).3 The rationale behind it is to
control the exercise of public power by the state ensuring that it is
exercised strictly within legal limits. The rule of law may be interpreted
either as a philosophy or political theory which lays down fundamental
requirements for law.4
Principle of the rule of law is recognized in treaties establishing both
bodies of European law. The rule of law was asserted in Magna Carta
1215, which enshrined the principle that even the King was not above the
law.5 It also protects citizens against arbitrary powers, guarantee the right
of fair trial by juries. Sir Edward Coke in the case entitled Prohibitions del
1 Reference to: B A Garner, Black's Law Dictionary, 9th edn, pg. 1448.
2 Reference to: A.V Dicey, Law of the Constitution, (9th edn London: Macmillan,
1959) pg.194
3 Reference to: M v. Home Office [1994] 1 AC 377.
4 Reference to: H Barnett, Constitutional and Administrative Law (9th edn
Routledge, Oxon 2011) pg.48
5 Reference to: L Webley & H Samuels, Public Law Text, Cases and Materials, (1st
edn Oxford University Press 2009) pg.85.
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Roy (1607) diplomatically but firmly asserted that the king could not act
as a judge using his own reason to reach decision.6
However, it can be argued from socialist perspective that liberalism
pays too little regard to true equality between persons and too great
attention to the protection of property interests. The rule of law would
become meaningless if it is general over-used and ideological abused. In
general, everything has advantages and disadvantages, and indirectly the
controversial arguments contributed by both sides led to the improvement
of legal systems and precise implementation for the rule of law that has
been performed at the present day.

A V Dicey and the Rule of Law


Diceys theory is often taken as the starting point for discussion of the rule
of law.7 Diceys formula:8
When we say that the supremacy of the rule of law is a characteristic of
the English constitution, we generally include under one expression at
least three distinct kindred conceptions.9
1st postulate
6 Reference to: Prohibitions del Roy, (1607, published 1656 (1572-1616) 12 Co
Rep 63)
7 Reference to: L Webley & H Samuels, Public Law Text, Cases and Materials, (1st
edn Oxford University Press, 2009) pg. 91.
8 Reference to: AV Dicey, Introduction to the study of the Law of the Constitution
(10th edn 1959, London: Macmillan & Co) pg. 185-95
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The first point brought out by Dicey requires that no man can be
punished unless there is a clear breach of law.10 This indicates that in
England, unless a law is broken, neither a person nor their goods can be
lawfully made to suffer.11 This is clearly designed to ensure the
government or state does not have rights to make secret or arbitrary laws
thus protecting the individual.12 One of the recent and important cases in
this field is the case of A and others v Secretary of State for the Home
Department.13 Moreover, in ensuring that no power is to be misused,
regular law should not allow the arbitrary or extensive discretionary
powers on state governor. Therefore, it is very important for law to limit
and restrict the states power as to prevent the abuse of power. A similar
case to it is R v R which is deemed to be unfair and the law should be
perspective instead.14
2nd Postulate

9 Reference to: A L Sueur, M Sunkin, J E K Murkens, Public Law text, cases and
materials (1st edn Oxford University Press, 2010) pg. 98.
10 Reference to: L Webley & H Samuels, Public Law Text, Cases and Materials,
(1st edn Oxford University Press, 2009) pg. 92.
11 Reference to: Law Teacher, Explain the rule of law URL:
http://www.lawteacher.net/public-law/essays/explain-the-rule-of-law-public-lawessays.php accessed on 28 April 2014.
12 Reference to: H Barnett, Constitutional and Administration Law, (8th edn,
London: Routledge, 2011).
13 Reference to: A and others v Secretary of State for the Home
Department [2004] UKHL 56.
14 Reference to: R v R [1991] 3 WLR 767 House of Lords.
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Secondly, Dicey stated that all is equal under the law as the law is
supreme, the government is also subjected to the law and that everyone
irrespective of rank shall be subjected by the same laws and no specialty
will be given to anyone.15 This is in line with the notion brought by Thomas
Fuller that once said Be you ever so high, the law is above you.
However, F.A. Hayek would argue that this does not mean that it is
impossible to enact law that differentiates between different groups in
society.16 The case of Entrick v Carrington is usually cited to provide
evidence that even the government is subject to the law and to the
authority of the courts.17 Through this matter, it illustrates that there is no
separation between tribunal between with state officer or ordinary people.

Another case which is M v Home Office is used as evidence for the


proposition that government ministers are to be subject to the law and to
the operation of court orders.18 Diceys faith in the ability of a
parliamentary democracy to deliver greater protection than a written
15 Reference to: M Ryan, Unlocking Constitutional and Administrative Law, (2nd
edn Hodder Education, Oxon 2010) pg. 110.
16 Reference to: F A Hayek, The Road to Serfdom, (1st edn Chicago: University of
Chicago Press, 1944) pg.42.
17 Reference to: Entick v Carrington [1765] EWHC KB J98.
18 Reference to: M v Home Office [1994] 1 AC 377.
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constitution also leads him to put forward the idea that government
should be conducted according to law.19
3rd Postulate
Thirdly, Dicey held that Individuals rights are protected through the
ordinary law and the ordinary court system.20 It expressed a strong
preference for the principles of common law declared by the judges as the
basis of the citizens rights and liberties. Dicey believed that the common
law gave better protection to the citizen than a written constitution. 21 As
Lord Manfield in Omychund v Barker held that:
A statute very seldom can take in all case, therefore the common
law, that work itself pure by rules drawn from the fountain of justice,
is for this reason superior to an Act of Parliament.22

Sir Ivor Jennings, who considered that Diceys third principle of the rule of
law, was more a reflection of his bias for the British System rather than a
necessary condition for the rule of law to flourish. 23 Which means that if an
individual believes that the executive has acted outside of its legal power

19 Reference to: G J Zellick, The Guardian, 15 February 1988.


20 Reference to: L Webley & H Samuels, Public Law Text, Cases and Materials,
(1st edn Oxford University Press, 2009) pg. 94.
21 Reference to: A W Bradley & K D Ewing, Constitutional and Administrative
Law, (14th edn Pearson Longman, Essex 2007) pg. 98.
22 Reference to: Omychund v Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33.
23 Reference to: Lord Bingham of Cornhill, Dicey Revisited [2002] Public Law,
pg.51.
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in reaching a decision, or if one believes the decision is wrong in law, then


they may challenge the decision through the courts. Through the
operation of The Human Rights Act 1998, citizens are protected with
concrete laws that ensure their rights are not infringed and that the courts
have conferred powers to declare incompatibility.24
Diceys view of the rule of law is based on assumptions about the
British system of government which in many respects no longer apply. 25
Thus, by the three main features, the rule of law can ensure a systematic
and fair system of government that will benefit all citizens.
However, this three means of rule of law raises some questions. As
Dicey stated that there shouldnt be any arbitrary powers, does that refer
to powers of government that are so broad they could be used for a wide
variety of different purpose? If arbitrary powers and wide discretionary
authority are unacceptable and it is contrary to the rule of law that it
should be given to government departments or public officers, then the
rule of law applies to no modern constitution. 26 Diceys second meaning
stresses the equal subjection of all persons to the ordinary law. The
specific meaning he attached to equality before the law was that all
citizens including officials were subject to the jurisdiction of the ordinary
courts should they transgress the law which applied to them and that
24 Reference to: United Kingdom Government, The Human Rights Act 1998,
URL: http://www.legislation.gov.uk/ukpga/1998/42/contents accessed on 29 April
2014.
25 Reference to: A W Bradley & K D Ewing, Constitutional and Administrative
Law, (14th edn Pearson Longman, Essex 2007) pg. 98.
26 Ibid.
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there should be no separate administrative courts.27 These views of Dicey


long impeded the proper understanding of administrative law, but today
the need for such law in a democracy cannot be denied. This is because
administrative courts in most European countries protect the individuals
against unlawful acts by public bodies.
Diceys third meaning of the rule of law expressed a strong
preference for the principles of common law declared by the judges as the
basis of the citizens rights and liberties. 28 Dicey had in mind the
fundamental political freedoms. He believed that common law gave better
protection to the citizen than a written constitution. However, it is no
longer possible to share Diceys faith in the common law as the primary
legal means of protecting the citizens liberties against the state in a
modern constitution. This is because the common law does not assure the
economic

or

social

well-being

of

individuals

or

communities

and

fundamental liberties at common law may be eroded by Parliament and


thus acquires a residual character.29

Lord Bingham and the Rule of Law


Basically, Binghams conception is the extension of Diceys three
postulates. There lie at least eight distinct conceptions of Bingham30:

27 Reference to: Brown& Bell, French Administrative Law.


28 Reference to: A W Bradley & K D Ewing, Constitutional Law and
Administrative Law, (14th edn Pearson Longman, Essex 2007) pg. 98.
29 Ibid.
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1. The law must be clear and accessible to all. Everyone must be able to
understand the law without undue difficulty. This is because if one
everyone is bound by the law, they must be able without under difficulty
to find out what it is, even if that means taking advice, and the answer
given should be sufficiently clear that a course of action can based on it. 31
In 2003, nearly 9000 pages of statutory instrument were passed and due
its volume, it will post great difficulty.

2. Questions of legal right and liability should be exercise by the


application of the law and not the exercise of discretion. In certain matters
such as immigration, injunctions and bankrupt matter, the courts are
given discretionary powers to make a decision. However, we must note
that the broader and more loosely-textured a discretion is, whether
conferred on an official or judge, the greater the scope for subjectivity and
hence arbitrariness, which is the antithesis of the rule of law.32

3. Laws of the land should apply equally to all, save to the extent that
objective differences justify differentiation. 33 However, there are certain
exception which include children, the mentally ill, handicap and prisoners.
30 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 27-38
31 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 28.
32 Ibid.
33 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 31.
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4. Laws of the land must effort adequate protection of fundamental


human right.

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Dicey did not include this content in his rule of law

concept. He stated that a state which savagely repressed or persecuted


sections of its people could not be regarded as observing the rule of law
and the rule of law must surely require legal protection of such human
rights as within that society, are seen as fundamental. 35 However, there is
no standard of human rights that is universally agreed even among
civilized nations.

5. Means are to be provided for resolving legal matters without excessive


delay and cost. This is because it would seem to be an obvious corollary of
the principle that everyone is bound by and entitled to the benefit of the
law and they are able to go to courts to have their rights and liberties
determined. This is not a rule directed against arbitration and more
informal means of dispute resolution which should be properly resorted
and fairly conducted. Moreover, the British governments have insisted
that civil courts should be self-financing, the cost of running courts should
be covered by legal court fees charged to litigants.

6. Minister and public officials must exercise that their powers in good
faith or not it will lead to the down fall of the system. This sub-rule reflects
34 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 32.
35 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 33.
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the well-established and familiar grounds of judicial review and it is indeed


fundamental.

7. Adjudicative procedures at the state should be fair. It was held that


application for this sub-rule to ordinary civil processes is largely
unproblematic once it is remembered that not all decisions are purely
judicial. As Civil Justice of Australia stated that, the rule of law does not
mean rule by lawyers.36

8. All nations must follow rule of law by complying with international law.
However, there are instances when the UK themselves disregarded the
international law. For example, in 2003, the UK and the US went for war to
Iraq to seek for weapons of mass destruction. The UNSC did not allow
them and this was a breach of international law.

Importance of The Rule of Law


Professor Joseph Raz and The Rule Of Law

36 Reference to: R Singh, Public Law Study Manual, (1st edn Brickfield Asia
Corporation) pg. 35.
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Professor Joseph Raz approaches the rule of law from a morally neutral but
conceptual stand point and argued that the rule of law should be limited
to formal values.37 According to him, the rule of law is just one of the
virtues which a legal system may possess and by which it is to be judged
and shouldnt be confused with other aspect or it would become a by-word
for general political ideals, hence, separate from its actual meaning.
Razs conception encompasses the additional requirements of
guiding the individuals behaviour and minimising the danger that results
from the exercise of discretionary power in an arbitrary fashion. 38 He
claimed that if the rule of law is the rule of good law, then to explain its
nature is to expound a complete social philosophy. 39 This is because he
thinks that legal philosophy is best understood as one branch of the
philosophy of practical reason philosophy engaged in the analysis of
reasons for action.40 For the rule of law to exist in society, certain qualities
must be present that the law must be clear if it is to be capable of being
obeyed.41 Razs theory of laws authority shows that law must be
understood in terms of its moral purpose. In conceiving of law, one must
37 Reference to: H Barnett, Constitutional and Administrative Law (9th edn
Routledge, Oxon 2011) pg.57
38 Reference to: Law and Health, What is the Rule of Law URL:
http://www.healthrights.am/eng/more/265/ accessed on 27 April 2014.

39 Reference to: P Allsop, Law Quarterly Review, (1st edn Sweet & Maxwell,
London) pg. 195.
40 Reference to: M Giudice, Joseph Razs Legal Philosophy URL: http://ivrenc.info/index.php?title=Joseph_Raz%27s_Legal_Philosophy accessed on 27 April 2014.

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understand that necessarily law claims moral authority to settle for


subjects how they ought to conduct themselves.Therefore, Raz does not
share Harts view of the separation of thesis as Hart held that:
it is in no sense a necessary truth that laws reproduce or satisfy
certain demands of morality, though in fact they have often done
so.42

Raz claimed that in conceiving a law one must understand that law
claims to be morally authoritative, so law must be understood to claim to
reproduce or satisfy demands of morality.43 We must know that when law
does reproduce or satisfy demands of morality, we are not only restricted
to the conclusion that this is simply a matter of contingent or historical
fact, we are also entitled to the observation or conclusion that this is part
of laws nature, and that its claim in a particular instance happens to be
justified. Razs views show in equal measure distinctive contributions to
philosophical theorizing of law and motivation for pursuing old questions
from new directions.

41 Reference to: H Barnett, Constitutional and Administrative Law (9th edn


Routledge, Oxon 2011) pg.57
42 Reference to: G Lautenbach, The Concept of the Rule of Law and the
European Court of Human Rights, (1st edn OUP, Oxford 2003) pg. 185.
43 Reference to: J Raz, About Morality and the Nature of Law, 48 American
Journal of Jurisprudence 1 (2003).
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Thomas Lon Fuller and the Rule of Law


According to Professor Thomas Lon Fuller, the rule of law concept is a
statement about the two-way relationship between the law giver and the
follower. He identifies eight requirements of the rule of law; 44 1) Laws must
be general, specifying rules prohibiting or permitting behavior of certain
kinds. 2) Laws must also be widely promulgated or publicly accessible as
publicity of law ensures citizens know what the law requires. ii) Laws must
be prospective, specifying how individuals ought to behave in the future
rather than prohibiting behaviour that occurred in the past. 3) Laws must
be clear. Citizens should be able to identify what the laws prohibit, permit,
or require. 4) Law must be non-contradictory. 5) One law cannot prohibit
what another law permits. 6) Law must not ask the impossible. 7) Nor
should laws change frequently, the demands laws make on citizens should
remain relatively constant. 8) There should be congruence between what
written statue declare and how officials enforce those statutes.
In contrast to Raz, he views from a moral standpoint wherein for a
very existence of system deemed legal, the basic pre-requisite of
morality duty or inner morality of law. 45 The analogy here is to show that a
legal system with a week framework will crash eventually. Fullers concept
which is known as morality of aspiration explained that the law does not
exist as a vacuum separate from the society it regulates; it operates hand

44 Reference to: C Murphy, Law and Philosophy, (Springer, 2005) pg. 239.
45 Reference to: H Barnett, Constitutional and Administration Law, (8th edn,
London: Routledge, 2011).
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in hand which as a result derives the state to create an optimum


environment in which citizens with accorded rights may fulfil their
maximum potential.46 The key here is that the law must serve the
interests of the people under it.

Arguements about the insignificance of the Rule of Law


Marxism and the rule of law
Marxism refers to the law as the opium of the masses, which means that
religion is the opium of the people. This is because he basically thinks
that religion is an expression of material realities and economic injustice
as problem in religion are ultimately problems in the society. Religion is
not the disease, but merely a symptom. It is used by oppressors to make
people feel better about the distress they experience due to being poor
and exploited.
46 Reference to: L L Fuller, The Morality of Law, (New Haven: Yale University
Press, 1964).
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An argument against the hypothetical view of the rule of law was


adopted by Dicey and von Hayek, demonstrating a contrast towards
Marxist standpoint.47 In liberalism, they insisted that law should be neutral
between any individuals and classes, it should provide maximum freedom
to all citizens that are under the law. 48 However, Marxism stated that law
should represent the benefits of the authority within society. 49 Law is an
ideological device engaged by those with power to cover the reality of
that power in society and the ordinary nation. 50 Consequently, the rule of
law is depicted as a method of deception that actually been used as a
mere pretence which hides injustice. In contrary to liberalism, Marxisms
viewpoint put an emphasis on searching for an absolute freedom of man.
From Marxist perspective, law is indicated as the reflection of economic
power within society, which the power is used to manipulate the
powerless.51 He thinks that laws which enhance the circumstances of the
poor do not represent real social justice, but rather they signify a designed
method by which the poor are kept obeying within their powerlessness.52

47 Reference to: H Barnett, Constitutional and Administrative Law (9th edn


Routledge, Oxon 2011) pg. 56
48 Ibid.
49 Reference to: R Wacks, Philosophy of Law, A Very Short Introduction ( Oxford
Unversity Press, Oxford 2006) pg.82.
50 Ibid.
51 Ibid.
52 Ibid.
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Hence, this matter bring on to the question of the importance of the


rule of law for a country, as Marxism absolutely denounces the need for
law as it views the law as nothing less a tool that is used by government
with their hidden agenda to make a profit. Instead, they chose to replace
the law with non-existent justice system for under a communist regime, as
they think that every mankind would account for the same and hence
there is no need for laws and justice to dictate their actions. 53 In reality,
this would not be practical as society in itself is filled with complication
and while a world without laws focusing on equality would in fact give way
to liberty, it would be short lived and temperamental for the state to
create arbitrary laws.

Conclusion
The rule of law is very important in a government system as it includes
accountability, good governance, human rights protections, justice and
independence of judiciary. Without the rule of law and its justice, the
implementation of law will be difficult because people will have no respect
towards the law, hence, lead to the domination of certain powerful party
to the weak party. Compliance with the rule of law will provide stability,
certainty, independence as well as efficiency in settlement of national
disputes according to the law. Thus, it could also assist the states in
economic and legal development. Therefore, it is necessary to have a

53 Reference to: K Marx & F Engels, The Communist Manifesto, (London: Communist
League, 1848)

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proper legal process in place that provides for accessibility to law with
affordable costs, procedural fairness that the evidence be both complete
and reliable.54

54 Reference to: H Barnett, Constitutional and Administrative Law, (8th edn


Routledge, London 2011).
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Bibliography
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(1st edn Oxford University Press, 2010)
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Articles
Raz J, About Morality and the Nature of Law, 48 American Journal of
Jurisprudence 1 (2003).

Official Published Sources


United Kingdom Government, The Human Rights Act 1998, URL:
http://www.legislation.gov.uk/ukpga/1998/42/contents accessed on 29
April 2014.

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accessed on 27 April 2014.
URL: http://www.healthrights.am/eng/more/265/ accessed on 27 April
2014.
URL: http://www.lawteacher.net/public-law/essays/explain-the-rule-of-lawpublic-law-essays.php accessed on 28 April 2014.
19

Table of Statutes
Prohibitions del Roy, (1607, published 1656 (1572-1616) 12 Co Rep 63).
A and others v Secretary of State for the Home Department [2004] UKHL
56.
Entick v Carrington [1765] EWHC KB J98.
M v. Home Office [1994] 1 AC 377.
Omychund v Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33.
R v R [1991] 3 WLR 767 House of Lords.

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