rule of law

The rule of law is one of the crucial standards of UK’s unwritten or uncodified constitution.[1] The key element within the rule of law is that the law should apply equally to everyone including people who are superior in status.[2] A.V. Dicey puts it as a ‘government of law’ and not a ‘government of men’[3]; this is to ensure there is a good relationship between the government and the general population.[4] The rule of law originates from the time of the Ancient Greeks such as Plato and Aristotle, whereby Plato longed for a successful way to rule the state, he contemplated whether the rule of good men would be the best form of governance or the second best option which Aristotle agreed upon was to rule by law.[5] The other option to the rule of law is there for a discretionary government. Along these lines, the rule of law builds up the relationship between the government and the general population. As John Lock states, ‘whenever law ends, tyranny begins’[6] 

 

In addition, the rule of law is the idea that the law should lead, conduct and cover both public and private authorities. The prime concept for the rule of law is that nobody is exempt from the laws that apply to everyone else, that there is a balance for all those under the gaze of the law.[7]

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The statement “The rule of law is conceptualised as a form of ‘shield’ between the individual and excessive governmental power” suggests that the citizens of a state are given protection by the rule of law from any underlying unlawful acts of government and anarchism. This idea is supported by theorists such as A.V. Dicey, who put forth three main principles in his “An Introduction to the Study of the Law of the Constitution” which he believed were crucial for the rule of law to be existent in a state.[8] His first principle was that no one should be punished by the state except for a breach of the law. According to Dicey, rule of law implies the complete authority of law and no man is culpable or can legitimately be made to endure in body or goods aside from a particular break of law established in the standard lawful way under the steady gaze of the courts of the land[9] Therefore the first principle refers to a lack of arbitrary power.[10]

 

His second principle goes about that irrespective of rank and status, no one is above the law, creating equality before the law, and this means each person is bound by the law.[11] The law applies to open authorities such as ministers as well as different individuals from society. This will guarantee that public authorities utilise their power sensibly and do not surpass their limits. This part of the rule of law is maintained through administrative law and the practice of judicial review.[12]

 

Dicey’s third and final principle states that individuals are protected through the ordinary law and the ordinary court system, which means that the rights and freedom of individuals living in a state are best protected under the common law for if they trust that a choice is not correct by law, at that point they may challenge the choice through the courts. [13]

 

Furthermore, by analysing the UK’s constitution it turns out to be certain that there are some key standards which shape the rule of law. In Kelly v Faulkner it was held that notwithstanding amid times of crisis, the typical lawful necessities with respect to the legitimate execution of arrest must comply. In this matter, the armed forces acting under the Civil Authorities were acting unlawfully as the claimant was not informed of the grounds of his arrest.[14] Therefore, those practicing legal power must have some legitimate authority for their actions, inside the terms given by parliament.

 

There are two fundamental schools of thought as respects to the rule of law among authors; there are those which have confidence in the formal rule of law and those which have faith in the substantive rule of law.[15] The formal school of thought otherwise called the “thin” school of thought gives further evidence that supports Dicey’s three principles and the idea of the rule of law being a ‘shield’ between the individuals of a state and unlawful executive governmental power. The “thin” school of thought portrays a state as standing by the rule of law if the law is made by a fixed method, nobody is punished by the state other than for rupture of the law and the law must be connected equally to all citizens of a state regardless of their power and status within the country, from this it can be seen that the “thin” school of thought promotes the rule of law as a ‘shield’ between individuals and the government.[16] Nevertheless, this view says nothing in regard to the ethical quality of law but instead that the subjects ought to be guided with the goal that each know their position in the state. Joseph Raz is a key promoter of the formal law and states that with specific end goals to accomplish the coveted certainty, laws ought to be imminent, clear, declared by an independent judiciary and must permit its nationals access to the courts.[17]

 

On the other hand, Fuller’s examination takes a considerably more substantive view than Raz’s. As per Fuller, the law must have some type of inner ethical quality such as morality to be deserving of being known as a lawful framework.[18] In this manner, he infers that an administration which commands authority could be a legislative framework. As indicated by this type of analysis, a legal framework must serve the interests of the general population and not just those in the administration itself.[19]

 

However, there are several points of criticism towards Dicey’s principles on the rule of law which may support the statement that “its precise content and application continues to lack clarity”.  Firstly, Jennings counter-argued that Dicey failed to address the huge number of forces of the minsters based on the royal prerogative, which is not liable to judicial oversight.[20] As parliament is sovereign, it has the power, to make, unmake and correct any law it wishes, therefore, in that sense it goes ‘above’ the law. Furthermore, recurrent changes imply that even well-civilised law obeying citizens of a state may incidentally end up infringing upon the law. This has the outcome of bringing the law into notoriety, on the grounds that either numerous law-abiding citizens will end up suffering for actions that they had no knowledge of being wrong or the law will be unable to be applied because officials will not know when and how to apply the new law. The rule of parliamentary benefit implies that the ministers and associates are not subject to lawful limitations on what they can state in parliament.[21]

 

Moreover, Jennings also stated that in order to ensure there is a fair and equal course of action before the law, there must be an independent judiciary that holds a fair hearing trial to review the law.[22] In addition, there are several concerns expressed about the extent to which Dicey’s second principle may actually apply to the general population, for example, legal aid is not generally simple and may deny access to individuals from middle-class families as they cannot afford to pay for the best solicitors.[23]

 

Additionally, retrospective laws are observed as contrary with the rule of law; in Burmah Oil Co Ltd v Lord Advocate, a claim was made against the crown for harm done by the British forces amid wartime.[24] Parliament, therefore, passed the War Damages Act 1965, with retrospective effect to deny adequacy to such claims for payment. The courts should likewise implement laws, as opposed to arbitrarily making it.[25]

 

The Strasbourg appeal from the case of Malone v Met Police Commission illustrates the lack of clarity in the rule of law where it does not show with clearness the scope and manner of the pertinent caution given on the public authorities.[26] The post office has intercepted Malone’s phone conversations under the authority of the Secretary of State for use by the police. Malone to that degree claimed against the Commissioner of Police that such lead was unlawful and for a directive against the Metropolitan Police Commissioner to hold interception of his phone. Demonstrating that even the least level of legal protection to which citizens are entitled under the rule of law in a fair society is lacking. The law must show the extent of any such caution (to meddle with the privilege to security) conferred on public authorities and the way of its activity with adequate clarity, keeping in mind the end goal to give individual satisfactory security against discretionary obstruction.[27]

 

In conclusion, parliament will stay pre-eminent while the rule of law guarantees that the executive does not surpass its power. There are a few hypotheses which look to characterise what rule of law ought to give, and the impact of the rule of law can be found in common law. The convention of the division of powers can be utilised as part of the answer to this question on whether the rule of law acts as a ‘shield’ or whether it lacks clarity in its duty. The judiciary; although playing out its constitutional function, it also keeps the executive in check through the rule of law, thus, maintaining the law as endorsed by Parliament.[28]

 

Rule of law has its own quality for protecting the human right, it encourages individuals to feel that there is dependably an undetectable neighbourly hand that will go about as a shield against the inequalities they may deal with in their daily life. Be that as it may, its foundation is particularly dependent on the sovereign authority of the state. In the chance of neglect to influence the law equally to everybody, denied residents will at that point feel that the law of their state is oppression for them. A legislature ought to implement those laws which will run with the public interest, not for the authorities’ own illicit reason, not against the general population sentiment.[29]

 

Thus, rule of law will shield the public from any sort of wrongdoing, disorder, imbalance and it will defend everyone to get their legitimate judgement. The executive has the power to make a new constitution and law. However, that does not imply that they can do as they please as all are equivalent in law. Everybody must stand before the law if any unlawful thing happened. So the general population as well as the legislature must comply with the law and need to make the best possible utilisation of law to shield the society from any threat. [30]