“The rule of law is conceptualised as a form of a ‘shield’between the individual and excessive governmental power, but its precisecontent and application continues to lack clarity.” Syrett. p64Discuss in relation to these two schools of thought on Ruleof Law and include at least one case to illustrate your argument.Rule of law has been enshrined into English law since the 12thcentury, this is illustrated by the Magna Carta 12151;which discussed the principle that everyone is subject to the law, regardlessof the status of the individual.
It also guarantees the rights of theindividual, the right to justice and the right to a fair trial2.However there has been much debate on the clarity of the interpretation of therule of law and its effectiveness today. The focus here will be on how the ruleof law in the U.K protects the public from excessive governmental power throughcreating equality and attempting to achieve justice. Interpretations of therule of law are very ambiguous, hence the lack of clarity in its precisecontent and how it is applied in English law. This is also another area thatwill be explored in further detail.
Rule of law stems from ancient Greece, discussed by Platowho sought to determine the most effective way to govern a state to promote amodel society3,and refers to the principle that the law is supreme and that no person regardlessof power, status, race or gender is above it. It attempts to achieve balancebetween the normal person and the state by making all subject to the law.Throughout the ages, it was frequently seen that ‘the impulse to obey the lawwas said to come from the monarch’s sense of moral obligation for no man andcertainly no judge could enforce this4.
‘This therefore meant anyone was susceptible to the power of the monarch whichwas notably seen during the time of Charles the I where arbitrary powers wereused to increase taxes and force them onto the public. This happened due toparliament rejecting the King Charles initial request to increase taxes. Thosewho refused to pay these taxes were imprisoned or held in detention throughroyal discretionary powers5.In this example, the rule of law established in the Magna Carta did not shieldthe public from excessive state power until the introduction of the Petition ofRights 16286.This established the liberties which people had as well as the restriction onpowers of the monarch. This Act is one of the first modern day examples, sincethe Magna Carta, of how the rule of law was implemented into the English legalsystem to shield the public from state tyranny, by making everyone subject tothe law. This is one of three core principles – No one is above the law – which was established by the theorist Diceyand agreed by Raz and other theorists. This principle is evidenced in the caseof Entick v Carrington (1765) 2 Wils 275, 19 StateTr 1029 10657.
LordCamden held that public power cannot be executed unless it is legallyauthorised. This meant that the state representatives actions were illegaltherefore meaning the defendants were liable. This agrees with the formalschool of thought as the law was clear and certain in that there must be awarrant or some form of authorisation to legally enable seizure of the papersas well as entry onto a premise. Here it is evident that rule of law protectedthe individual from an abuse of power by the state, hence proving that the ruleof law acts as a shield from excessive governmental power as well as agreeing withDicey’s core principle that no one is above the law.
On the other hand, it seems that the rule of law isundermined by parliamentary supremacy. In theory Parliament have the power tomake any law or repeal any law that they want without any judicialintervention. This means the courts cannot prevent any law from being made evenif it violates any human rights or is immoral.
They may only scrutinise the lawand express their opinions. One way in which it is apparent that the rule oflaw is undermined by parliament is through S.41 of the Terrorism Act 20008in which it states that ‘a constable may arrest a person without a warrant whomhe reasonably suspects to be a terrorist’.
This goes against Dicey’s theory aswell as the formal school of thought as it states that there must be a clearand distinct breach of law for such actions to take place. This also conflictswith some substantive theorists’ ideas that ‘the law must uphold human rights.9This act was then amended by the Anti-Terrorism Crime andSecurity Act 2001 which then allowedthe indefinite detention of suspected foreign international terrorists withouttrial. 10. ‘For three years, a group of men were detained in highsecurity prisons and mental health institutions under this power – without everknowing the suspicions that kept them there, let alone having been convicted ofany offence11.’ Once again, parliamentary supremacy overpowers the rule of law andviolates the ideals of the formal school of thought in which there must be aclear breach of law. In this example there was not. It also contradicts thesubstantive school of thought as it does not uphold human right values.
In thiscase it is the right to a fair trial, found under the Human Rights Act 199812 which gives effect to Article 6 of the European Convention on HumanRights13. Currently Theresa may be looking to repeal the Human Rights Act 1998.Although in theory this is possible due to parliamentary supremacy, it would beextremely difficult for this to be done on the basis that not all MP’s wouldagree with this.
This supports the argument that the rule of law does notalways act like a shield to the individual against excessive state power as therule of law is not binding onto parliament. This is evident throughparliamentary supremacy which disregarded the principles of the rule of lawwhen the Anti-Terrorism Crime and Security Act 200114. was passed as well as S.41of the Terrorism Act 200015. This supports the argument that the rule of law does not really protect theindividual from excessive state power and that the rule of law is powerless/has minimal effect on state power.A common issue with the rule of law is that it lacks clarityregarding its precise content and how it is applied. An example of this isthrough the different interpretations by different many theorists as well asjudges in some cases. AV Dicey argued the point that Each man’s individual rights are best protected under CommonLaw16 but Professor J.
Razargued that in theory, a non-democratic legal system… based on the denial ofhuman rights may conform to the rule of law better than any of the legal systems17. Given that the rule oflaw is only a theory rather than a principle written and embedded in an actualwritten constitution, means that it is open to different views ofinterpretation. This clearly presents the lack of clarity in the rule of law asthe principles of this depends on the view of the individual or group as seenwith Dicey and Raz.
Another area where the rule of law seems to lack clarity isregarding the Guantanamo bay prisoners who have not had the right to trial eventhough this has been established in the Habeas Corpus Act 167918.The rule of law clearly states that there must be a clear breach of the law anyactions to take place19,but many of the Guantanamo bay prisoners who are British citizens have not beendetained due to a clear breach of law. Many individuals have been detainedunder allegations made against them which conflicts with the theorist Jenningsas well as many others regarding the law upholding human rights20.Lord Bingham stated that he understands Raz’s reasoning that the rule of lawshould deny human rights21,which goes against the beliefs of some substantive theorists that the lawshould uphold morality.
22Lord Bingham disagrees with this view. This also creates confusion towardwhether indefinite detention without a breach of law is right or wrong whichcontributes to the point that the rule of law lacks clarity as it’s isdifficult to tell whether the actual content is binding or not. But many acts and legislations such as theHabeas Corpus and the Magna Carta are embedded with the principles of the ruleof law, yet it is still not clear whether it is binding or not due to factorssuch as parliamentary supremacy and different viewpoints. Many groups and individual argue that the rule of law isquite clear in its principles and how it operates. AV Dicey established threecore principles of the rule of law; No one is above the law and that thegeneral principles of constitution and the rights of an individual has beenbrought about by judicial decisions in cases brought to the courts meaning therights of individuals are best protected by the common law system23.This has been supported by constitutional experts such as Hayek andcorroborated by the traditional school of thought. ‘Friedrich von Hayek, one of the most masterful and insightful economistsand philosophers, is a latter-day exponent of Dicey’s viewpoint.
24’This provides clarity in the rule of law as it presents what many theoristshave agreed on as the core principles of the rule of law as the years havepassed thus illustrating that it is clear, and its content is precise.To conclude, the rule of law actsin some ways as a tool to protect the public against the state as seen in thecase of Entick v Carrington. But then again it can only do so much to act as ashield. In some cases, it is not enough to protect from excessive state poweras seen with parliamentary supremacy. Although it would be difficult to usethis to undermine the rule of law, it is still possible. The rule of law isclear in its core principles.
It attempts to promote equality between all,regardless of their position. The way it is applied however does lack someclarity due to factors such as different theorists’ opinions and its history.Overall it seems that in todays society the rule of law does protect theindividual from excessive governmental power.
This is due to the U.K beingconstitutionally strong. Its clarity however is debatable due to the vastnumber of views on the rule of laws content, how and when it should be applied.But most legal experts agree with AV Dicey’s three core principles, thereforeproviding some clarity.1 Magna Carta 12152 Loulla-Mae Eleftheriou-Smith, ‘Magna Carta: What is it-And Why Is It Still Important Today?’ The Independent (2015)3 Lisa Webley and HarrietSamuels, Public Law (3rd edn, OUP Oxford 2017) 81.4 Ibid 81.5 ‘The Petition of Right’ (TheBritish Library)