Constitutional Principles:
The rule of law
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Meaning of the doctrine:
In reality it is neither a rule or law
It is a doctrine of political morality that aims at
ensuring the correct balance of rights and powers
between individuals and the state
Adherence to the doctrine requires more than to
govern according to the law since this is not
necessarily equivalent to govern under the law
“Only in a country where the rule of law means
more than formal, legal validity will subjects enjoy
real protection from official tyranny and abuse”
Mathews
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Law is an instrument for exercising state power
that in some circumstances is also a means of
protecting the people against arbitrary and
abusive government
Aristotle: ‘Government by laws was superior to
government by men’
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Dicey’s definition (Introduction to the Study of Law
and Constitution) 1885
Constitution is governed by three main principles
Three meanings of the Dicey’s definition
First,
‘It means in first place, the absolute supremacy or
predominance of regular law as opposed to the
influence of arbitrary power, and excluded the
existence of arbitrariness, of prerogative, or even a
wide discretionary authority on the part of the
government.... A man can be punished for a breach
of law, but he can be punished for nothing else
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Thus his first point refers to absence of
arbitrary power
Such a power can be defined that has no
identifiable legal origins or limits.
Example Entick v Carrington 1765: court refused
to accept that a government Minister in
absence of any common law or statutory
authority had any power to grant warrants
permitting entry and search of private premises
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No person can be punished except for a breach
of law. Penalty can only be imposed on an
individual for a breach of an established legal
rule proved in the ordinary courts of law
Controversial: detention of terrorist suspects
up to 28 days without trial
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Second part of the Dicey’s definition
‘equality before the law, or the equal subjection
of all classes to the ordinary law of the land
administered by the ordinary courts’
No one is above the law, officials and citizens
need to obey the same law
He opposes that officials enjoy legal privileges
and immunities
Crown Proceedings Act 1947 (Crown to be
sued in contract and tort)
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Third,
‘the law of the Constitution, the rules which in
foreign countries form part of a constitutional
code, are not the source but the consequence of
the rights of individuals, as defined and
enforced by the courts..., thus the constitution
is the result of the ordinary law of the land”
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Third part, explanation
The meaning of this statement implies that the
rights of the individual are not only ensured by
the guarantees set down in a formal document
but by the ordinary remedies available against
those who unlawfully interfere with someone’s
liberty
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There have been some interpretation to give
the doctrine greater content
idea to offer minimum standards in terms of
the way, laws are expressed and administrated
The emphasis is on the need for the rules and
procedures that would ensure that laws are
used for the protection of rights and not just a
means of legitimising the use of powers
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The legal concept of "the rule of law" was
incorporated into our judicial system. Hayek
explains, the rule of law means that people do
not have to answer to the arbitrary decisions
of governmental officials; instead, they guide
their actions by what is prohibited by a
clearly defined law. Freedom, therefore,
means answering only to a well-defined,
previously established law, rather than to the
arbitrary and discretionary edicts of some.
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The rule of law is also now considered an
outdated legal concept. Today, people must
answer to hundreds of thousands of arbitrary,
unclear edicts from the politicians and
bureaucrats rather than to clearly defined laws
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One of the proponents if the doctrine is Joseph
Raz (1977). He proposed a procedurally oriented
version of the doctrine in 8 postulates. He shares
common ground with the constitutional theorists
A. V. Dicey Hayek. Thomson.
Raz's principles define the requirements that
should guide the individual's behaviour and
should minimize the danger that could result from
the exercise of discretionary power in an arbitrary
way.
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8 of Raz's principles are as follows:
1. That law should be general ( not
discriminate) prospective rather than
retroactive, open, clear
2. Law should be stable and not changed too
frequently, as lack of awareness of the law
prevents one from being guided by it.
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3.There should be clear rules and procedures
for making laws.
4. The independence of the judiciary has to be
guaranteed.
5. The principles of natural justice should be
observed, particularly those concerning the
right to a fair hearing..
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6.The courts should have the power of judicial
review over the way in which the other
principles are implemented.
7. The courts should be accessible; no man may
be denied justice.
8. The discretion of law enforcement and crime
prevention agencies should not be allowed to
pervert the law
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According to Raz, the validity of these
principles depends upon the particular
circumstances of different societies, whereas
the rule of law generally "is not to be confused
with democracy, justice, equality (before the
law or otherwise), human rights of any kind or
respect for persons or for the dignity of man".
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How wide-ranging and strong the rule of law is
when measured against parliamentary supremacy
Since Dicey's observations in The Law of the
Constitution (1885), the rule of law has played a
pervasive role in our constitutional thinking.
But, until recently it was confidently assumed that
parliamentary supremacy ultimately always
trumps the rule of law.
After the long debate, judicially and academically.
As the scope of judicial review came to be
broadened, the rule of law has played an ever
larger role
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.Initially, its role was largely restricted to
ensuring procedural fairness. Gradually, the
rule of law acquired substantive content. For
example, the rule of law was the foundation of
a decision upholding access to justice where a
prison governor refused a prisoner access to his
lawyer.
Another case was where it was held that the
Lord Chancellor's imposition of substantial
court costs unlawfully impeded access to the
courts.
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Until recent times, however, it was widely
believed that the rule of law could never
prevail against an express enactment of
Parliament. Moreover, it was thought that the
rule of law does not cover all the elements of a
rights-based democracy. In general terms that
may still be right.
But a series of decisions of the House of Lords
in the last few years have breathed new life
into the rule of law.
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In Anufrijeva the question came before the
House of Lords whether the withdrawal of
income support by an internal note on a
departmental file from a date before
notification of the decision was lawful.
By a majority of the House held that the
uncommunicated decision had no legal effect.
The House stated that the decision may have a
more general bearing on the development of
our public law.
The House observed:
 “The arguments for the Home Secretary ignore
fundamental principles of our law. Notice of a
decision is required before it can have the
character of a determination with legal effect
because the individual concerned must be in a
position to challenge the decision in the courts if he
or she wishes to do so.
This is not a technical rule. It is simply an
application of the right of access to justice. That is a
fundamental and constitutional principle of our
legal system.”
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The House invoked the constitutional principle
requiring the rule of law to be observed. In the leading
judgment, I observed:
“That principle too requires that a constitutional state
must accord to individuals the right to know of a
decision before their rights can be adversely affected.
The antithesis of such a state was described byKafka
Kafka: a state where the rights of individuals are
overridden by hole in the corner decisions or
knocks on doors in the early hours. That is not our
system. I accept, of course, that there must be
exceptions
to this approach, notably in the criminal field, e.g.
arrests and search warrants, where notification is
not possible. But it is difficult to visualise a rational
argument which could even arguably justify
putting the present case in the exceptional
category.”
Clearly this is a wide application of the rule of law,
beyond earlier categories. The constitutional
impact of the decision is clear.
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Implications today:
1) the rule of law should embody a preference
for orderly life within an organised society
2) the rule of law expresses fundamental
principle that government must act according
to law and in the cases before the court what
the law requires must be enshrined in judicial
decision
3) the rule of law should be applied according
to the procedures lied down for its execution
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British tradition:
Government must act according to law: the
remedy should be available in ordinary courts
for unlawful acts of government
Human Rights Act extended to all courts the
duty where possible to interpret legislation
consistently with the European Convention on
Human Rights