The Rule of Law
This chapter is not usually tested alone in the P1 but is tested often in p2. However, it is important to know this by heart since you will have to add it in chapters like the precedent, parliamentary sovereignty, civil law, and criminal law, how courts work and then in police powers, etc. |
What is the law?
• Law may influence certain aspects of our society, but most people in the UK and Wales have very little knowledge of the judicial system is used in those nations. For many, their key recognition arises from newspaper articles featuring titles like' Murderer sentenced to life;" Young rapist goes free" 'Burglar arrested.' That sort of headline happens so often that it is not shocking that many people only think of the criminal law and the courts grappling with this type of case when the statute is stated.
• In fact, the law includes a vast array of circumstances, and England and Wales' judicial system has a multitude of courts and approaches to deal with various kinds of cases.
It’s good if you start your answer on precedent and other chapters that talk about how the law works. It will set a great foundation to tell the examiner that you know what you are talking about. |
Different Types of Law
Very important as you will have to distinguish and know the details for all these types of laws and in what courts they are heard. The more different, similarities, and work that you know, the better It will be for your analysis in the answer. |
Although the law includes such a wide range of issues, splitting it into various categories can be useful. The very first differentiation is that between international and domestic (municipal) law, domestic law can then be categorized into public and private law; both categories can eventually be broken down into several various categories. The following are examples of these categories.
• International and national law
• International law is associated with conflicts amongst nations; most of this law comes from conventions decided upon by the countries' governments.
• National law is the law that exists within a nation: each nation also has its own national law, and often there are broad variations between the laws of different nations.
• The differences can be seen from the acknowledgment that Scotland does have its own law and legal framework that is quite different from the law and legal system existing in England and Wales. E.g., while in both systems, criminal cases are tried by a jury, the Scottish jury has 15 representatives, and a simple majority of 8–7 can make the decision. The jury of England and Wales, on the other side, includes 12 representatives, of whom at least ten have to decide on the verdict.
Public and Private Law
There is typically a distinct difference between public and private legislation under national law. In some form, public law affects the state or government, while private law covers conflicts between individuals or companies. It is important to split both public and private legislation into different categories.
Public law
Public law applies to the government arrangement. Public law in the United Kingdom consists of constitutional/administrative law, tax, and criminal law.
Why is Public Law Important & What Does It Involve?
• Public law is important due to the unequal government-public relationship. The legislature is the only agency capable of making decisions on peoples' freedoms, and they must function within the rules. If they are dissatisfied with an official body's ruling, a person will apply for judicial review.
• Public attorneys can practice in various areas of law, including constitutional/administrative law, tax law, and criminal law. These are slightly different areas of law. For instance, if you were employed in constitutional/administrative law, you could deal with the NHS, local council, or other government institutions.
• Criminal lawyers are active in all facets of a prosecution, including trial, police assistance, and appeals. Criminal law typically involves a lot of reporting!
• There are several explanations as to why public law is distinct from public law. These have changed over the years, but it is widely considered as a mixture of the philosophy of subjection and the theory of the subject.
• The philosophy of subjection implies that the interaction between the citizen and the state and private law is regulated by public law. The philosophy of the topic implies that public law exists if a citizen becomes a member of a public body.
• The mixture of these two theories leads to the definition of public law as an area where an actor is an authority with the power to act arbitrarily. When this body operates as a public entity, it follows public law.
• It does not seem that some areas of law fit into either public or private law. Employment law, for example, fits into both — the employment contract is a matter of private law, while workplace health and safety is a matter of public law.
There are three main types of law in this category. These are:
Constitutional Law
• It monitors the system of governing and any controversies that occur over problems such as who is qualified to vote in the election, or who is qualified to become a Parliamentarian, or if an election was held by the proper procedure.
Administrative Law
• It governs the operation of state governments and public bodies such as local councils. The right to judicial review of certain judgments is an important part of this. Judicial review allows courts to assess the reasonableness of a ruling (or refusal to make a judgment). If not, the judgment will be reconsidered.
Criminal Law
• This specifies the types of traits that are prohibited at the risk of punishment. It is said that a person committing a crime has violated the state, and therefore the state has the right to charge them. This is so even though an actual survivor of a crime is often implicated as well.
• For instance, if a criminal performs a burglary offense by breaking into a house and stealing, the state may sue the perpetrator for that robbery, although the suspect may also seek a private prosecution if the state fails to provide a representation to the defendant.
However, the state still has the power to intervene and take over the matter even if there is a private prosecution. If the defendant is found guilty at the end of the case, the judge will prosecute the defendant for the crime because he or she has violated the state's criminal law. Any reimbursement would automatically be offered to the survivor, as the situation is not deemed to be a conflict between the Burglar and the householder. The criminal courts, furthermore, have the authority to order the defendant to pay compensation to the individual and to render such a decision, as well as to fine the perpetrator.
Private law
• This is commonly referred to as civil law and has many various branches. Trust law, contract, family law, inheritance law, corporate law, and employment law are the main ones. It is prudent, therefore, to have some understanding of what sorts of conflict might be present in these areas of law, so consider the following situations:
- A family claims that their package trip was not in accordance with the tour operator's commitment and that they were located in a lower-grade hotel than they had arranged for.
- A woman purchased a new automobile and found that the motor was unreliable.
- A man who purchased a new automobile on contract purchase failed to pay the payments because of the hire-purchase service.
- All these conditions are subject to contract law. Of example, there are many other instances where arrangements can be concerned. Look now at the next set of situations; they are also civil issues but of a different nature.
- In a crash (the tort of negligence), a child's passenger in a vehicle is harmed.
- A family argues that the vibration and pollution from a plant that has just been built near their house (the annoyance torture) impact their safety.
- An individual is harmed by defective equipment at work (due to negligence, but may also entail the liability of the workers and/or the obligation of the employer under health and safety regulations).
- A man claims that a false story about him was published by a newspaper that damaged his credibility (the slander tort).
• All these cases are subject to the law of tort.
- A tort occurs where civil law continues to hold that, although there is no agreement between them, one person owes another person a certain kind of legal responsibility known as the duty of care, and that duty of care has been infringed.
- There are a lot of various kinds of a tort, and only some of them are illustrated by the definitions mentioned. Most incidents are induced by road traffic accidents because motorists owe a duty of care to anyone who could be hurt by their negligent driving.
• Many private (civil) law sections are focused on specific subjects. Family law includes topics such as whether a marriage is legitimate, what the criteria are for divorce, and who should have the daily care of any family members.
- Succession law is concerned with governing who inherits property when a person dies without creating a will, as well as with the guidelines for making a valid will.
- In the business world, corporate law is very important: it governs how a corporation should be established, provides formal rules for managing businesses, and deals with shareholders' and directors' rights and duties.
• Employment law includes a large scope relating to employment, from the original creation of an employment agreement to termination or unfair dismissal cases.
- In relation to these fields of private law, there are also laws concerning property, copyright and trademarks, maritime law, and many other subjects, so it can be seen that civil law covers a wide range of situations.
Distinguishing Between Civil and CriminalLaw
• Realizing that civil law is very distinct from criminal law is essential. Criminal law is a branch of public law. However, civil law falls In the distinct branch of private law. Crime is seen as a crime against the state and society as a whole because criminal law is part of public legislation.
• Civil law is referred to as private law because the things it deals with are between two persons. All forms of legislation have different purposes and are dealt with in various courts.
Major chunk for your analysis. |
Differences Between Criminal Cases and Civil Cases
There are several distinctions in criminal proceedings and criminal proceedings
The cases take place in different courts.
• In general, criminal cases are heard either in the Magistrate's Court or the Crown Court, whereas civil cases will be tried in the High court or the county court. (Keep in mind that some civil issues can be handled within the Magistrates' Court, particularly family cases)
• The person starting the case is given a different name.
- The ones bringing in the cases are known as the prosecutor in criminal cases; however, in civil cases, they are known as the claimant and previously known as the plaintiff (pre-1999).
- As already mentioned, the criminal case is brought on behalf of the state, and the Crown Prosecution Service is liable for prosecuting prosecutions, although other state agencies that investigate other types of crime, such as the Environment Agency or Customs and Excise.
- The individual (or business) making a claim initiates civil cases.
• The terminology used is different.
- A defendant is proven guilty or not guilty in a criminal case (an alternate way to put it is to claim that the defendant is accused or acquitted), while a defendant is determined to be innocent or not responsible in a civil case.
- Those deemed guilty of a crime may be convicted at the conclusion of a criminal case, although anyone found responsible at the end of a civil case will be required to remedy the matter as far as practicable.
- This is usually done by granting payment in cash, known as damages, although the judge can impose certain decisions such as an injunction to avoid similar actions in the future or a specific performance order where the person who violated a deal is required to finish the contract.
• The standard of proof is different.
- It is necessary to prove criminal cases' without reasonable doubt.' This is a very strong standard of evidence and is important as a prosecution might result in a criminal receiving a long jail sentence.
- Civil cases need only be proved' on the chance basis,' a lesser requirement where the judge decides who is most likely to be right.
- This key distinction in the criterion to which a case must be proved means that although a plaintiff has been acquitted in a criminal case, a civil case against such a defendant based on the same facts can still be successful. Cases like these are rare.
- Certain circumstances where civil action can be accompanied by a strong criminal case include instances involving road accidents. A person may be charged and convicted of a driving crime, such as passing a red traffic light or driving without due care and consideration; this is a criminal case.
- Anyone who was harmed as a result of the accident or who had lost property may file a civil action and recover damages. The reality that the suspect was guilty of a traffic crime would make the civil case harder to prove
Major chunk for your analysis. |
Definition of 'Law'
• We have only tackled those areas of law so far and have followed the structure that remains in England and Wales for a short time. It is now important to explore more broadly what is implied by law in general and to equate it with principles of morality and justice.
• Giving a concise one-sentence description of law is not possible–indeed, such a concept has been sought by legal theorists. In the early 19th century, John Austin described the law as an order given from a superior (state) to an inferior (individual) and imposed by penalties.
• Nonetheless, this definition does not really extend to regulatory laws such as setting out how a will must be made; nor does it include the principle of judicial scrutiny, where individuals can contest a state minister's "order." At a period when the law was much less advanced than it is now, Austin wrote, so it is not shocking that his interpretation does not include all forms of law today.
• Sir John Salmond described the law as' the set of values that the state recognizes and extends to the administration of justice.'
- This is a much broader definition than that of Austin and is probably the most interesting and closer one to achieving a workable description of' single-sentence.' Law could also be defined as a structured social control system.
- It is procedural because the laws laid down in the legislation can be applied through the judiciary and the legal system, although it could be said that the regulation is concerned in some sphere of social control in a broad sense.
Law and Rules
• Law usually extends to people across a whole nation. Some laws are applicable only to specific classes or in rare situations: for instance, many sports have a number of rules to obey, and the punishment imposed for breaking the rules may be that a free kick is offered to the other team, or that a player gets suspended, or that a player is disqualified from playing for a number of weeks or months in serious cases.
- For example, as per the law, street fights against one another are considered to be unlawful, even if there is consent. Some might say that it was consensual, but it still will be unlawful. To extend the law, even if after a consent, the fight is taking place in a boxing ring, it will be named as a street fight, and the people involved in it will be guilty.
• In communities, there are also unwritten' rules.' They come from local tradition or culture, or they may be related to religious beliefs.
• They impose what is considered the norm for actions by the group. When you violate these laws, others in the society will disagree with your conduct, but if you fail to do so, there is no legal sanction to compel you to obey or threaten you. Such normative values are often linked to the concept of morality and sexual behavior.
Codes of Law
• There has been an attempt in some civilizations or states to create a full set of regulations intended to deal with any potential situation that may occur.
• This was done by some of the early modern cultures, especially the Roman-era Justinian code.
• A series of 17,000' codes' collected by Frederick the Great of Prussia in the 18th century, which he saw as a complete and perfect set of laws.
• Napoleon has codified the rules in France, and today this Napoleonic Code forms the cornerstone of French law. The notion of a complete computer is enticing in principle. This makes the law more available so that all know exactly what their rights and responsibilities are; Law should be able to adapt and evolve with society's needs, and a strictly codified structure will preclude these improvements.
Law and Morality
• Communities' moral values set a foundation for how society should function. Morality standards vary from society to society, though most are likely to ban drastic actions like murder. Morality is often based on religious ideas: the scriptures of the Bible provide Christian groups with a moral code and the Quran teachings for Muslims.
- A country's law would generally reflect the ethical principles that most of the nation embraces, but it is doubtful that the rule will be precisely the same as the specific religious, moral code.
- One such issue is of adultery: it is against the moral compass for both Christians and Muslims but is not considered criminal in Western nations: nevertheless, it is (although not all) under criminal law in some Muslim states.
A community's morals and values are recognized as having a deep effect on the development of legislation, but morality and law are never probable to be co-extensive advanced societies. There will also be significant violations of a moral code (such as murder and robbery), but there may not be agreement on other topics.
• There has been a step away from a religious conviction in England and Wales, and this is reflected in the way the legislation has evolved. Abortion was allowed in 1967, but it is still considered by many to be morally wrong.
- A restricted form of euthanasia was recognized as lawful with the decision of Airedale NHS Trust v Bland (1993) when the medical staff was allowed to remove life-support systems from a patient who was unable to breathe but was in a persistent vegetative state.
- This decision indicated that, regardless of the fact that it would eventually lead him to suffer, they might cut the patient's feeding tubes.
• Again, many people also believe this is unethical because it refuses to acknowledge human life's sanctity.
Differences Between Law and Morality
In the way, the two evolve and the sanctions placed, there are also discrepancies between law and morality.
• Morality cannot be altered intentionally; it grows gradually and shifts according to people's will. The legislation will intentionally change the law: this ensures the conduct that was contrary to the law can be "decriminalized" immediately. Similarly, it can be considered unconstitutional conduct that was legal.
• Morality is optional with repercussions, although usually without official sanction (although some sects can 'excommunicate'); morality relies on the sense of shame or remorse of the person for its efficacy.
• Morality infringements are typically not subject to statutory adjudication; a formal legal procedure may decide on infringements of legislation.
Law and Justice
• It is often said that fairness is given by the constitution, but this is not always true. Justice is probably the ultimate goal the law should strive for, but in every case, it is unlikely that law will ever produce 'justice.'
• First, there's the question of what' justice' entails. Lord Wright reflected on the challenge in determining justice, saying:' A judge's guiding principle when resolving trials is to do justice; that is law-based justice, but still justice. We have not found any adequate definition of justice; what happens only to the faithful in a particular case is what seems fair to the reasonable man.'
• The idea of what justice is might not be the same in some cases for everyone. Equality can be seen as applying the rules to all people in the same way, but even this will contribute to perceived injustices–however, the arbitrary implementation of the law can, in effect, result in injustice.
• An area where much discussion has taken place is the amount of force a householder can use on a burglar entering the home of that person. What's equitable for both sides and equal? Should the Burglar be permitted to injure or even kill the householder seriously? Can the burglar claim compensation for any losses that have been suffered?
Rights and Duties
• The law gives people privileges and compliance procedures. Quite often, a balancing act involves the law, trying to ensure that the rights of one person do not affect the rights of another person. The statute often places obligations on people in order to maintain the balance.
• Looking at cases, this is easier to understand. Under contract law, where an individual orders a digital TV from a store, each party will have rights and duties under that arrangement. The shop, for example, has the right to be charged the negotiated amount for the television, whilst the customer has the right to get a package in operating order.
• It is also important to easily see the concept of rights and duties in employment law. An employer has a duty to pay the employee wages, whereas the employee is entitled to sue for any wages owed. A member of staff has a duty to obey reasonable legal orders while an employer is entitled to expect this and may be able to dismiss the employee if a serious breach occurs.
- The employer has a responsibility to provide all workers with a safe work environment, whereas an individual has the right to claim benefits if he is hurt because that obligation has been violated by the employer.
• Those are just a few of workers' and employees' rights and obligations and this balance of their rights and duties.
• Even if the parties do not have a contract or arrangement, the law can enforce rights and duties on individuals. Another consideration is the freedom to use one's own property (including a house or flat) as another wants.
- The law recognizes that people have the right to enjoy the use of their own lands, but the freedom of other landowners to enjoy the use of their assets supports that privilege.
- So the punishment of annoyance requires an argument to be made if one's enjoyment of land is disturbed by too much noise, haze, smells, or other noises emanating from the property of another.
• The notion of rights and duties can be seen even in criminal law. Criminal law imposes an obligation on all citizens to obey the law or face punishment. To defend other people or culture as a whole, this obligation is enforced. In this way, the statute upholds people's rights not to be violated or robbed their belongings or anything else that affects the particular crime.
It is important to know this part. Know what you can do, and know what is an obligation. |
The Rule of Law
The 'rule of law' is a symbolic idea. It is difficult to give a precise meaning to the concept. The best-known explanation of the 'rule of law' was given by Dicey in the 19th century, but there have been other important writers on the topic since. These include FA von Hayek and Joseph Raz.'
• Generally, rule of law is known to be defined as "Law is above and equal for all" this meaning is just for understanding and that it should not be used in the exam paper.
• It implies that no matter who is facing the trial, the law should be the same for all and should be given equal fines and sentences.
Dicey
Dicey regarded the rule of law to be an important characteristic that differentiated English law from other European countries. He believed that the rule of law was formed by three components.
An answer without Dicey will fall in the lowest band and probably give you a C or below. Focus on this. |
These were:
1. Absence of arbitrary power on the part of the state.
2. Equality before the law.
3. The supremacy of ordinary law.
1. Absence of arbitrary power of the state
• The power of the state must be regulated by the law. The statute will set boundaries on what should or shouldn't be performed by the state. Actions and judgments of government ministers can be contested by judicial review in our legal system.
• One of the rule of law's main aims is to prohibit the state from having wide discretionary powers. Dicey recognized that power could be used unfairly in order to comply with the rule of law, and this should be discouraged.
2. Everyone must be equal before the law
• No one can be above the rules. It doesn't matter how rich or influential an individual is, and they must be treated the same way as anyone would. Another aspect of this part of the rule of law is that those who perform state functions must be responsible for their actions under the law.
3. The law must be supreme
• This is especially true for England and Wales law during Dicey's tenure, as many of the key changes up to that time were generated by the government instead of by judicial decisions. Today, most laws are passed by statute, i.e., statutory actions and approved statutes, while judicial decisions also create law.
Problems with Dicey's Views
• A big issue with Dicey's interpretation of the rule of law is that it violates one of the fundamental principles, that of the sovereignty of Parliament.
• This principle maintains that any other legislation can be overruled by a constitutional act. The principle further notes that no other party has the power to circumvent or set aside a legislative act
• There should, therefore, be no discretionary control on the portion of the state below the rule of law, yet under legislative sovereignty, Parliament has the right to make whatever legislation it desires, and these may include the granting of arbitrary authority to the state.
• It is also difficult to appeal the legislation passed by Parliament by judicial review. This is separate from some other nations where the legislative body is subject to the rule of law, and laws passed by them can be challenged in the courts.
• Another issue is that in Dicey's principle, equality under the law relates to technical equality. It does not take into account the differences in wealth, power, and connections between people.
• Real equality can only be accomplished if these inequalities are solved through mechanisms in place. The cost of bringing civil cases to court, for example, is very high.
• To enable the poorest people in society to enforce their rights and thus be equal under the law, some form of state assistance is needed to fund their case
• The interpretation of the rule of law by Dicey is focused on abstract ideas. This makes working in real-life situations complicated.
Dicey played a very important role in English law and especially for the rule of law. The view of dicey is the essence of the topic so do not miss it. |
Von Hayek
• FA von Hayek shared the idea by Dicey that lack of any arbitrary power on the part of the state is the key element of the rule of law. Writing in 1971, he looks at it this way:' The rule of law removed of all specifics means that the government in all its behavior is bound by the same rules fixed and planned well in advance.'
• He believed that the rule of law was becoming weaker because, given that the actions of the state where authorized by law, then any act in compliance with that law was lawful.
• The democratic state no longer simply has a legislative framework for undertaking the economic activity, but is involved directly in monitoring and organizing that behavior.
• Such involvement has risen in the 21st century owing to financial issues, with the failure of some institutions and also the emergence of controversies such as interest rate fixing. Such action is warranted in light of these, but it contrasts with the definition of the rule of law.
Important for the analysis. Give good detail but less than that of dicey, use this in analysis and compare the differences and similarities to achieve the highest marks. |
Joseph Raz
You must know all these points, however, give only one-liner details. Use all this in analysis about similarities, differences, who was better, who you agree with, who was accepted. Did any of their point of view become applicable in the English law? |
• Joseph Raz, who also wrote in the 1970s, recognized that the rule of law was a way to control power rather than completely prevent it.
• He considered the rule of law to be of negative value, acting in an arbitrary manner to minimize the danger of using discretionary power.
• He felt the key point that arose from the rule of law was that the rules had to be able to guide the actions of the person.
He laid out a variety of concepts that are drawn from this broader idea.
Some of these are:
1. There should be clear rules and procedures for making laws.
2. The independence of the judiciary must be guaranteed.
3. The principles of natural justice should be observed; these require an open and fair hearing with all parties being given the opportunity to put their case.
4. The courts should have the power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the rule of law.
• There have been changes in our legal system in the 21st century that support these principles. A major example is the 2005 Constitutional Reform Act, which acknowledged the rule of law and the importance of judicial independence.
Writing sections, acts and cases are what will get you the marks. Stand out of the thousands of candidates appearing in the exam. |
Section 1 of that Act states:
'This Act does not adversely affect –
(a) the existing constitutional principle of the rule of law; or
(b) the Lord Chancellor's existing constitutional role in relation to that principle.'
While s3(1) states:
'The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.'
Human rights and the English legal system
• Under the 1998 Human Rights Act, our law accepted the European Convention on Human Rights. This has impacted the English legal system in many places. That section provides a brief overview of some of the key findings.
Precedent
• Section 2(1)(a) of the Human Rights Act specifies that any ruling or recommendation of the European Court of Human Rights must be taken into account by our courts. It ensures that judges will look into cases of human rights as well as our own English rule before determining a lawsuit.
Statutory Interpretation
• Section 3 of the Act states that, to the extent possible, all laws (i.e., parliamentary acts and other laws made in this country) must be enforced in order to be compatible with the European Convention. For instance, if the wording of a Parliament Act has two alternate meanings, then the meaning that fits with the European Convention is the one that needs to be used.
Trials
• The right to a fair trial is provided under Article 6 of the European Convention. It ensures that the court must be equitable in all respects.
• For example, after the case of T v the United Kingdom, V v United Kingdom (1999), the way juvenile offenders are prosecuted was modified. In this scenario, the Crown Court charged a 10-year-old boy and an 11-year-old boy for murder.
• The European Court of Human Rights held that it would have been difficult for the boys to understand what was going on due to the formality of a Crown Court trial.
• It indicated the court was not rational, and the European Convention was infringed. The Crown Court now has more open guidelines regarding criminal cases in order to comply with the protocol. Of starters, offenders don't have to sit in jail but sit with their legal counsel. The court often sits for shorter hours to allow children to have a reduced period of care.
Sentencing
• Where an inmate is sentenced to life imprisonment, a mandatory term to be completed is usually set before the individual can be eligible for release.
• The Home Secretary (a member of government) used to determine a minimum sentence. The European Court of Human Rights considers this to be a breach of the Eu Convention. This has been updated so that judges now have to set a minimum time.
Judicial Appointment
• In this region, part-time judges had been named for a term of three years. They could then be assigned for a further three-year period after this time. Furthermore, the nomination was rendered by the Lord Chancellor (a member of the government).
• The length of the term was extended to five years, as the shorter span was assumed to mean that there was a possibility that the judges would not be fully independent of the government. This would have been a European Convention violation.
Know all these parts and give these chunks in your paper to let the examiner know that you know it all. |
Conclusion:
The law revolving the rule of law can be very complex, and there is a constant dispute between equality and parliamentary supremacy. To date, this has not been resolved; however, given the other parts of the law, for example, trials, precedent, sentencing, etc., this gap can be efficiently covered by the judiciary and the government if they go for fairness and not the rigidity of the law.
EXTENSION ESSAY
'The rule of law is an ideal, but one which can never be fully achieved.' Discuss.