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Krakow Rule of Lawlecture 4
Krakow Rule of Lawlecture 4
Krakow Rule of Lawlecture 4
Constitutional Principles:
The rule of law
Rule of Law
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
Rule of law
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’
Rule of Law
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
Rule of Law Dicey’s definition
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
Dicey’s definition
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
Dicey’s definition
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)
Dicey’s definition
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”
Dicey’s definition