Rule of Law

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The idea of the rule of law can be traced back to at least the time of Aristotle who observed that given the choice between a king who ruled by discretion and a king who ruled by law, the later was clearly superior to the former. In more recent times, it is Albert V. Dicey who is credited with providing the logical foundation upon which the modern notion of the rule of law is based. Dicey did not invent the idea of the rule of law but he popularized it in the late nineteenth century. His book, Introduction to the Study of the Law of the Constitution (1885) can be seen as a strong defence of the English constitution when compared with the constitution of other countries, particularly those with written constitution. De Smith states that, ‘His ideas… were very influential for two generations; today they no longer warrant detailed analysis' (Constitutional and Administrative Law, 1998). It is true that Dicey's ideas went out of fashion for a time, but they have now come back into favour, particularly with senior members of the judiciary. Indeed it is now specifically mentioned in sections of the Constitutional Reform Act 2005.

The rule of law generally refers to two elements; firstly, the recognition that the use of governmental powers should be kept in check to prevent infringement upon civil liberties and secondly, the recognition that law and order should be maintained at all times to ensure a stable upon which the government's work may be done. Since United Kingdom has no written constitution or a clear separation of powers, it has a length history of constitutional development during which it can be argued that a balance has been reached between these two elements. Dicey in his book1 defended United Kingdom's system of an unwritten constitution2 and argued that this was a positive gain. Dicey summarized the rule of law under three main principles.

His primary principle concerned the rule of law and discretionary powers. No man could be punished or lawfully interfered by the authorities except for breaches of law. In other words, all government actions must be authorised by the law or government must act within its legal powers. The classic example of these ideas was in the judgment of Entick v Carrington (1765) where it shows the limitation to state power. It was held that there was no law supporting the issuance of warrant and invasion of Entick's house. The warrant was, therefore declared illegal and void. Dicey placed emphasis on this aspect of rule of law. He argued that nobody should be punished, except for a specific breach of law; and that every person irrespective of rank be subject to the law. In R v Horseferry Road Magistrates' Court, ex parte Bennett (1994), it was held that the authorities abused their power and this resulted in the entire prosecution being illegal. Lord Griffiths said, “… the judiciary accept responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law”. The abovementioned cases clearly stated that the executive cannot lawfully assume powers which are not within the armpits of the common or statutory laws. Order Law Essay

Dicey's second principle has the resounding title of ‘equality before the law'. Which means; no man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. This reflect the famous quote by Thomas Fuller; “Be you ever so high, the law is above you”. This held that the government and its officials should not have any special exemptions or protections from the law. Dicey claimed that “every official … is under the same responsibility for every act done without legal justification as any citizen”. In M v Home Office (1994) 1 AC 377 HL, it was held that the executive was not above the law and that the Secretary of State was not entitled to claim Crown immunity. Dicey also did not like...
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