This assignment will explore the concept of
This assignment will research the construct of the regulation of jurisprudence and what it means, secondly it will see whether or non this construct exists in UK jurisprudence and whether or non it is successful in procuring answerability and protecting autonomy. It will be concluded that the construct is a varied one, and means different things to different people. However as a generic construct it will be argued that it does be in the UK but that it conflicts with other philosophies found in the UK, therefore reasoning that it can non needfully procure answerability or protect autonomy.
As Loveland points out “The regulation of jurisprudence is non a legal regulation, whether in the context of the British Constitution or any other, but a political or moral rule. As such, it will needfully intend different things to different people harmonizing to their peculiar moral or political positions” [ 1 ] . The construct of the regulation of jurisprudence as influenced by Dicey appears to be encompass the following thoughts: foremost, that powers exercised by authorities must be founded on lawful authorization as opposed to being arbitrary ;
“no adult male is punishable or can be legitimately made to endure in organic structure or goods except for a distinguishable breach of jurisprudence established in the ordinary legal mode before the ordinary tribunals of the land. In this sense the regulation of jurisprudence is contrasted with every system of authorities based on the exercising by individuals in authorization of broad, arbitrary, or discretional powers of restraint [ 2 ] ” .
Second, that citizens should be before the jurisprudence ;
“We mean… when we speak of the ‘rule of jurisprudence ‘ as a feature of our state, non merely that with us no adult male is above the jurisprudence, but ( what is a different thing ) that here every adult male, whatever be his rank or status, is capable to the ordinary jurisprudence of the kingdom and conformable to the legal power of the ordinary tribunals” [ 3 ] .
And thirdly, that the jurisprudence should be clear: [ 4 ]
“We may state that the fundamental law is pervaded by the regulation of jurisprudence on the land that the general rules of the fundamental law ( as for illustration the right to personal autonomy, or the right of public meeting ) are with us the consequence of judicial determinations finding the rights of private individuals in peculiar instances brought before the tribunals ; whereas under many foreign fundamental laws the security ( such as it is ) given to the rights of persons appears to ensue from the general rules of the fundamental law [ 5 ] .”
Although Dicey was the chief influence in finding precisely what the regulation of jurisprudence was or still is, there is a voluminous literature on the regulation of jurisprudence which examines the construct from about every imaginable position, [ 6 ] unluckily these autumn beyond the range of this paper [ 7 ] .
Traditionally constitutional attorneies in the UK have advocated that there is a strong attachment to the regulation of jurisprudence and that it most surely does be in the UK. An early illustration of this can be found in the instance of Entick v Carrington. [ 8 ] In this instance the so King, agents moving under a warrant issued by the Secretary of State broke into the house of Entick. The ground for this was because he was alleged to be the writer of faithless Hagiographas, and removed certain documents. It was found that because the action was justified by no specific legal authorization, it was a common trespass, for which the Secretary of State was apt in amendss. If authorities is under the jurisprudence tribunals are empowered to do the important finding of what the jurisprudence is, this must intend that the authorities is in a sense under orders of the tribunals, expressed in the signifier of injunctions. The instance of Re M [ 9 ] confirmed that curates of he Crown were obliged to obey tribunal orders. This instance expressed the impression that the activities of the authorities must hold a footing in jurisprudence ; this has of class now been confirmed by the Human Rights Act 1988. The Human Rights Act makes all of the convention rights contained within the ECHR binding on all public governments, including tribunals, which act unlawfully if they act mutual exclusiveness with them under s6 ( 1 ) . Under s 3 ( 1 ) of the Human Rights Act, “So far as it is possible to make so, all statute law, must be construed compatibly with the Convention rights” , though if ay primary statute law can non be construed, it remains valid and of full consequence – the tribunals are given no work stoppage down powers.
The impression that the jurisprudence applies every bit to all citizens in the UK can besides be attacked. Members of Parliament bask complete civil and condemnable unsusceptibility in regard of words spoken during “proceedings in parliament” by virtuousness of the Bill of Rights 1688, while Judgess besides enjoy assorted legal privileges.
The regulation of jurisprudence contradicts greatly with many other philosophies, such as parliamentary sovereignty and the construct of an act of the province, this makes it hard for the regulation of jurisprudence entirely go unafraid answerability and to protect autonomy. One illustration of this contradiction can be seen in Salaman v Secretary of State for India [ 10 ] it was said that “an act of State is basically an act of autonomous power and, therefore, can non be challenged, controlled or interfered with by municipal courts.” Although this does non intend that a mere averment of the defense mechanism will do to throw out the legal power of the tribunals and that the Crown must specifically plead an “act of state” , it still does non to function to back up the construct that the Rule of Law secures accountability [ 11 ] .
The imprecise nature of Acts of the Apostless of State does non back up the impression that the regulation of jurisprudence protects liberty. As the imprecise nature of the Acts of the Apostless of province suggest that arbitrary power is being exercised: in a peculiar case there may be uncertainness as to whether authorization allows an action to be classified as an act of State. The regulation of jurisprudence does non intend that retainers of the Crown must ever indicate to lawful authorization for their actions and hence can non vouch to protect autonomy.
It has been demonstrated that the regulation of jurisprudence is a variable construct one which is non capable of a individual definition. On the footing of Dicey’s definition it would look that this does be in the UK, although it can non entirely, procure the autonomy of the citizen or unafraid answerability.
Entick V Carrington ( 1765 ) 19 State Tr 1029
Re M [ 1993 ] 3 WLR 433
Salaman v Secretary of State for India [ 1906 ] 1 KB 613
Bill of Rights 1688,
Human Rights Act 1988
Craig P, ( 1997 ) “Formal and Substantial Concepts of The Rule of Law: An Analytic Framework” , Public Law Autumn 467- 487
Barnett H, ( 2004 ) “Constitutional and Administrative Law” , Cavendish Publishing
Bradley A & A ; Ewing K, ( 2002 ) “Constitutional and Administrative Law” Pearson Higher Education
Dicey, ( 1959 ) “The Law of the Constitution” , 10ThursdayEdition
Loveland I, ( 2003 ) “Constitutional Law, Administrative Law and Human Rights: A Critical Introduction” , Third Edition, Lexis Nexis Butterworths
O Hood P, ( 2001 ) “Constitutional and Administrative Law” , Sweet and Maxwell