What is the rule of law (Dicey)
The inquiry of the intent of the regulation of jurisprudence and how the boundaries should be drawn between moral opinion and the demand to keep a basic degree of order within a society has been asked, over the centuries, by many high theoreticians from the legal, political and philosophical universe. Several different sentiments have emerged with changing grades of understanding, with the construct that the regulation of jurisprudence is the jurisprudence and we must obey it, irrespective of how unfair the regulations may look.
Although the exact significance of the regulation of jurisprudence has been interpreted in different ways by the assorted different theoreticians, the really basic rule that the regulation of jurisprudence means that no person is above the jurisprudence seems to keep in all readings. In England, the premier illustration of the regulation of jurisprudence is the Magna Carter in which King John agreed to stay by the feudal Torahs and the placing of bounds on fees associating to feudal land.
What is the Rule of Law?
Before sing whether or non the regulation of jurisprudence consists simply of a organic structure of regulations or whether there is more to the manner in which the regulation of jurisprudence is applied, it is first necessary to see precisely what is meant by the ‘rule of law’ .
Dicey [ 1 ] was non, in fact, responsible for the birth of the regulation of jurisprudence, but was instrumental in conveying it into the public sphere for argument and consideration. He contended that the regulation of jurisprudence was made up of three cardinal rules. First, that an person has the freedom to move in any manner he so wishes without penalty provided it is non in breach of any jurisprudence. This gives domination to the regulation of jurisprudence over any other arbitrary act of power that is non backed in jurisprudence. Second, that no 1 is above the jurisprudence significance that every topic, irrespective of stature, can be held accountable to the jurisprudence and punished in the tribunals of the land. Third, that the regulation of jurisprudence is based on the corporate rights of all persons. Basically, this means that the tribunals will implement single rights on a corporate footing to all topics within its legal power.
This basic construct has been slightly extended in recent old ages, most notably by Lord Bingham in his talk given on 16 November 2006 to Cambridge University [ 2 ] where he put frontward eight sub-rules that should be seen as portion of the overall regulation of jurisprudence. These were that foremost, the jurisprudence should be available and apprehensible to all it governs, based on the premiss that if person is to be governed by a jurisprudence they should be able to understand it to the full. Second, that when faced with the determination of liability or answerability, the jurisprudence should be used without so far as is possible the usage of discretion. Third, that the jurisprudence in the manner in which it is applied should be equal and cosmopolitan to all. He did, nevertheless, recognize that at times it would be necessary for some persons to be treated otherwise. Fourthly, that any jurisprudence must supply a basic degree of protection for all cardinal human rights, to every topic, irrespective of fortunes. Fifthly, where there is a civil difference that can non be resolved, the parties should hold entree to be effectual and efficient agencies of covering with the difference. Sixthly, that all members of authorities or officers of the authorities should move in good religion when transporting out their jurisprudence enforcement responsibilities and should non move outside of their single powers. Seventhly, that any adjudicatory procedure should be just and transparent in the manner it arrives at determinations. Finally, the province has to see its duties to international jurisprudence when following with any national regulation of jurisprudence.
In kernel, the regulations laid out by L Bingham are non well different from those laid out by Dicey ; they are simply more elaborate sing the manner in which the Torahs should be applied. This offers greater counsel on the topic of what an person should make when faced with a apparently unfair jurisprudence. It besides gives greater penetration into the manner in which the regulation of jurisprudence should be viewed, by and large, and applied in relation to other political, spiritual and moral models.
Application of the Rule of Law
Having understood the basic rules of what the regulation of jurisprudence contains, it is so necessary to travel frontward to see how this applies and really plants, in pattern, in relation to society as a whole. Again, this country has drawn attending from some of the great legal theoreticians of all clip and has, in some instances, been heatedly debated.
One of the cardinal thoughts laid down by Dicey is that the authorities has no greater authorization in footings of the manner in which it is viewed in the tribunals. The regulation of jurisprudence clearly indicates that the authorities must hold restraints and can non merely move in any arbitrary manner that it pleases. This has been borne out in several tribunal instances including the early instance of Entick v Carrington [ 3 ] where it was held that the warrant a Home Secretary had issued to come in a in private owned belongings was against the jurisprudence and, hence, the authorities was guilty of trespass.
Theorists from the really early phases have recognised that there is a demand for some cardinal regulation to command all persons. Not to hold any cardinal jurisprudence would, about surely, consequence in lawlessness. In its earliest format, the demand for a regulation of jurisprudence was established by Plato [ 4 ] and Aristotle [ 5 ] where they recognised the demand for at least a grade of regulation or there would be complete lawlessness within society. Without any signifier of jurisprudence or govern the stronger and more craft would efficaciously do the most of their place by working the weak. It is about universally accepted that person needs to take overall control of a manner that maintains democracy and prevents the weak from being exploited. For this cardinal control to work, the power needs to be vested in some political and legislative authorization.
Aristotle, in peculiar, recognised the importance of the function of this cardinal figure. He debated at length whether this cardinal control should be the regulation of jurisprudence or regulation of work forces. His eventual decision was that a regulation of jurisprudence was necessary and that the cardinal figure had to be in the signifier of some higher governmental authorization. He concluded that a regulation of jurisprudence was indispensable as Torahs are produced as a consequence of ground and idea and non based on pure passion. Furthermore, holding one single leader can clearly take to tyranny or self-seeking actions. As the regulations need to regulate every grownup single, each person should hold a say in how these regulations are established. Finally, a rotary motion of those in charge of the regulation of jurisprudence is desirable to guarantee equality throughout [ 6 ] . For these grounds, Aristotle concluded that a regulation of jurisprudence, operated in a democratic mode, is indispensable to guarantee that regulations are consistent and non arbitrary in the manner they are both established and maintained.
Invasion on the Rule of Law
Despite the cosmopolitan acknowledgment that the regulation of jurisprudence is both desirable and indispensable for the effectual operation and administration of society, there have been several invasions on the traditional regulation of jurisprudence. There is a organic structure of idea that suggests the authorities has made several moves to infringe on the individual’s autonomies. One of the most noteworthy of these is the remotion of the right to a test by jury in certain limited fortunes. In making so, it is argued that the equality and equity of the system is lost. Persons are non judged by their equals but are alternatively dictated to by a higher authorization.
Another country that has faced unfavorable judgment is the manner in which the secret service operates and, in peculiar, the Official Secrets Act and related gagging orders that have been put on certain persons. Clive Ponting, who was a civil retainer during the Falklands War, was gagged and prevented from talking about the activities of the authorities, during this clip.
It is argued that this invasion on single autonomies, to the extent that it is necessary to protect the greater good, should non be seen as a breakage of the overall kernel of the regulation of jurisprudence. Although these governmental powers are seen as overmastering the individual’s rights, it is besides argued that these invasions would non in the normal class of day-to-day activities come into contact with these invasions [ 7 ] .
Similarly, it is besides argued that governmental organic structures such as the secret services are overseen by independent organic structures and, hence, are non able to move in a manner that is arbitrary or discriminatory.
Based on this, it can be concluded that whilst the regulation of jurisprudence is sometimes dead set to suit the demands of the populace as a whole, it can non be carried out in an arbitrary manner. Further, there are cheques and balances in topographic point to do certain that no individual organic structure exercises excessively much power over another.
The Role of Customs
One component of the regulation of jurisprudence which has to be considered when finding how the regulations are established and how general imposts should be dealt with in the creative activity of such Torahs is that of customary pattern. This is peculiarly hard as imposts vary depending on parts, faiths and even societal categories and are hence really hard to command or pass to take history of. Nevertheless, it should be noted that imposts do non make Torahs, as such ; they are merely used by Judgess when using the jurisprudence, which can at times result in an arbitrary application of imposts in relation to the regulation of jurisprudence.
In order to be recognised as a jurisprudence, a usage must run into really rigorous trials including the fact that it must hold existed since ‘time immemorial’ , i.e. it must hold been in being since at least 1189 ( in conformity with a legislative act enacted in 1275 ) .
The usage must besides be certain in footings of range and application. The instance of Wilson V Willes [ 8 ] held the customary right to take every bit much sod as was necessary from the manor common land. It was held that this usage was non sufficiently certain to be considered a valid jurisprudence, as it was non clear what limits there were on the sum of sod.
Other demands include the vicinity of the usage as imposts are merely of all time applied on a local and non national footing. They must hold been systematically exercised and exercised as a right instead than an irregular caprice. In short, the acknowledgment of a usage as a legal regulation is merely applied in utmost fortunes and provided that it does non conflict with an bing jurisprudence.
The Role of Morality
Equally established as early on as Aristotle’s works, the regulation of adult male or general morality can non be relied upon to supply the footing of legal construction for all persons. Everyone has a different thought of what constitutes moral behavior ; to let every person to follow their ain moral codification would ensue in pandemonium and upset. Whilst everyone has their ain moral criterions, most persons recognise that there is a demand for cosmopolitan Torahs, even if they do non ever fall in line with their ain moral judgements [ 9 ] .
The trouble comes when there is no evident overall benefit to the jurisprudence in inquiry. For illustration, where the act does non harm another and there is apparently no common intent so, under the regulation of jurisprudence, there should be no jurisprudence forestalling such actions. This has been the instance with homosexualism which is now non considered to be illegal. There are other activities that are thought of as illegal but non immoral, by some at least, such as drive over the velocity bound, smoking marihuana or registering a false revenue enhancement return.
It is clear that although jurisprudence and morality are interlinked, they are non straight and inextricably idea of as one. Despite this, persons, on the whole will recognize that there is a demand for a legal system and will see it moral to follow these regulations even if they do non to the full agree with them.
Are Unjust Laws, Laws at all?
This distinction between jurisprudence and morality leads us to see the ultimate inquiry of whether the regulation of jurisprudence requires persons to follow the jurisprudence, even if it is obviously unfair. Are persons in fact obliged non to obey regulations that they see every bit unfair as stated by Martin Luther King when he wrote from his gaol cell in Birmingham, Alabama, saying ‘one has a moral duty to disobey unfair laws’ ?
Where an person is governed by the regulation of jurisprudence but decides to interrupt one of these Torahs as he views them as unfair, provided he accepts the ensuing duty it can be said that he maintains his attachment to the regulation of jurisprudence. The regulation of jurisprudence provinces that he should be dealt with reasonably and inadvisably and, hence, spans a much greater remit than merely puting down the Torahs that must be followed.
As stated by Dworkin [ 10 ] , merely because the regulation seems to be unfair does non give any single the right to believe that it is a jurisprudence at all. It does, nevertheless, give persons the right to be dealt with reasonably if they choose non to follow such a regulation.
The regulation of jurisprudence is an indispensable portion of any democratic society. A cardinal set of regulations that everyone must follow is required to forestall arbitrary regulation and, finally, entire lawlessness. Having said this, the regulation of jurisprudence does non merely put down a set of regulations and use them tyrannically. The regulation of jurisprudence has a much wider range and considers how the Torahs should be applied and adapted to cover with social alterations and local imposts. It is this overall model of regulations tainted with a grade of political and judicial discretion that makes the regulation of jurisprudence an on-going success in covering with the vagaries of human nature.
Aristotle, Ethics Book V, in K.S. Chukkol, ‘Enforcement of Opinions Against Public Officers and the Institutions and the Rule of Law’ , in Ayua ( ed. ) ,Law, Justice and the Nigerian Society( NIALS, Lagos 1995 ) p. 61
David Brink, ‘Legal Positivism and Natural Law Reconsidered’ ( 1985 ) The Monist 68 364–387
Ronald Dworkin,Taking Rights Seriously( paper-back book ed. , Harvard University Press, Cambridge, Mass. 1978 )
John Finnis,Natural Law and Natural Rights( Clarendon Press, Oxford 1980 )
Lon Fuller,The Morality of Law( revised ed. , Yale University Press, New Haven & A ; London 1969 )
Robert George ( ed. ) ,Natural Law Theory: Contemporary Essaies( Clarendon Press, Oxford 1992 )
Matthew Kramer, ‘On the Moral Status of the Rule of Law’ ( 2004 ) Cambridge Law Journal 63: 65