“The rule of law is conceptualised as a form of a ‘shield’
between the individual and excessive governmental power, but its precise
content and application continues to lack clarity.” Syrett. p64
Discuss in relation to these two schools of thought on Rule
of Law and include at least one case to illustrate your argument.
Rule of law has been enshrined into English law since the 12th
century, this is illustrated by the Magna Carta 12151;
which discussed the principle that everyone is subject to the law, regardless
of the status of the individual. It also guarantees the rights of the
individual, the right to justice and the right to a fair trial2.
However there has been much debate on the clarity of the interpretation of the
rule of law and its effectiveness today. The focus here will be on how the rule
of law in the U.K protects the public from excessive governmental power through
creating equality and attempting to achieve justice. Interpretations of the
rule of law are very ambiguous, hence the lack of clarity in its precise
content and how it is applied in English law. This is also another area that
will be explored in further detail.
Rule of law stems from ancient Greece, discussed by Plato
who sought to determine the most effective way to govern a state to promote a
and refers to the principle that the law is supreme and that no person regardless
of power, status, race or gender is above it. It attempts to achieve balance
between 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 law
was said to come from the monarch’s sense of moral obligation for no man and
certainly no judge could enforce this4.’
This therefore meant anyone was susceptible to the power of the monarch which
was notably seen during the time of Charles the I where arbitrary powers were
used to increase taxes and force them onto the public. This happened due to
parliament rejecting the King Charles initial request to increase taxes. Those
who refused to pay these taxes were imprisoned or held in detention through
royal discretionary powers5.
In this example, the rule of law established in the Magna Carta did not shield
the public from excessive state power until the introduction of the Petition of
This established the liberties which people had as well as the restriction on
powers of the monarch. This Act is one of the first modern day examples, since
the Magna Carta, of how the rule of law was implemented into the English legal
system to shield the public from state tyranny, by making everyone subject to
the law. This is one of three core principles – No one is above the law – which was established by the theorist Dicey
and agreed by Raz and other theorists. This principle is evidenced in the case
of Entick v Carrington (1765) 2 Wils 275, 19 State
Tr 1029 10657. Lord
Camden held that public power cannot be executed unless it is legally
authorised. This meant that the state representatives actions were illegal
therefore meaning the defendants were liable. This agrees with the formal
school of thought as the law was clear and certain in that there must be a
warrant or some form of authorisation to legally enable seizure of the papers
as well as entry onto a premise. Here it is evident that rule of law protected
the individual from an abuse of power by the state, hence proving that the rule
of law acts as a shield from excessive governmental power as well as agreeing with
Dicey’s core principle that no one is above the law.
On the other hand, it seems that the rule of law is
undermined by parliamentary supremacy. In theory Parliament have the power to
make any law or repeal any law that they want without any judicial
intervention. This means the courts cannot prevent any law from being made even
if it violates any human rights or is immoral. They may only scrutinise the law
and express their opinions. One way in which it is apparent that the rule of
law is undermined by parliament is through S.41 of the Terrorism Act 20008
in which it states that ‘a constable may arrest a person without a warrant whom
he reasonably suspects to be a terrorist’. This goes against Dicey’s theory as
well as the formal school of thought as it states that there must be a clear
and distinct breach of law for such actions to take place. This also conflicts
with some substantive theorists’ ideas that ‘the law must uphold human rights.9
This act was then amended by the Anti-Terrorism Crime and
Security Act 2001 which then allowed
the indefinite detention of suspected foreign international terrorists without
trial. 10. ‘For three years, a group of men were detained in high
security prisons and mental health institutions under this power – without ever
knowing the suspicions that kept them there, let alone having been convicted of
any offence11.’ Once again, parliamentary supremacy overpowers the rule of law and
violates the ideals of the formal school of thought in which there must be a
clear breach of law. In this example there was not. It also contradicts the
substantive school of thought as it does not uphold human right values. In this
case 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 Human
Rights13. Currently Theresa may be looking to repeal the Human Rights Act 1998.
Although in theory this is possible due to parliamentary supremacy, it would be
extremely difficult for this to be done on the basis that not all MP’s would
agree with this. This supports the argument that the rule of law does not
always act like a shield to the individual against excessive state power as the
rule of law is not binding onto parliament. This is evident through
parliamentary supremacy which disregarded the principles of the rule of law
when the Anti-Terrorism Crime and Security Act 200114. was passed as well as S.41
of the Terrorism Act 200015
. This supports the argument that the rule of law does not really protect the
individual 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 clarity
regarding its precise content and how it is applied. An example of this is
through the different interpretations by different many theorists as well as
judges in some cases. AV Dicey argued the point that Each man’s individual rights are best protected under Common
Law16 but Professor J.Raz
argued that in theory, a non-democratic legal system… based on the denial of
human rights may conform to the rule of law better than any of the legal systems17. Given that the rule of
law is only a theory rather than a principle written and embedded in an actual
written constitution, means that it is open to different views of
interpretation. This clearly presents the lack of clarity in the rule of law as
the principles of this depends on the view of the individual or group as seen
with Dicey and Raz.
Another area where the rule of law seems to lack clarity is
regarding the Guantanamo bay prisoners who have not had the right to trial even
though 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 any
actions to take place19,
but many of the Guantanamo bay prisoners who are British citizens have not been
detained due to a clear breach of law. Many individuals have been detained
under allegations made against them which conflicts with the theorist Jennings
as well as many others regarding the law upholding human rights20.
Lord Bingham stated that he understands Raz’s reasoning that the rule of law
should deny human rights21,
which goes against the beliefs of some substantive theorists that the law
should uphold morality.22
Lord Bingham disagrees with this view. This also creates confusion toward
whether indefinite detention without a breach of law is right or wrong which
contributes to the point that the rule of law lacks clarity as it’s is
difficult to tell whether the actual content is binding or not. But many acts and legislations such as the
Habeas Corpus and the Magna Carta are embedded with the principles of the rule
of law, yet it is still not clear whether it is binding or not due to factors
such as parliamentary supremacy and different viewpoints.
Many groups and individual argue that the rule of law is
quite clear in its principles and how it operates. AV Dicey established three
core principles of the rule of law; No one is above the law and that the
general principles of constitution and the rights of an individual has been
brought about by judicial decisions in cases brought to the courts meaning the
rights of individuals are best protected by the common law system23.
This has been supported by constitutional experts such as Hayek and
corroborated by the traditional school of thought. ‘Friedrich von Hayek, one of the most masterful and insightful economists
and philosophers, is a latter-day exponent of Dicey’s viewpoint.24′
This provides clarity in the rule of law as it presents what many theorists
have agreed on as the core principles of the rule of law as the years have
passed thus illustrating that it is clear, and its content is precise.
To conclude, the rule of law acts
in some ways as a tool to protect the public against the state as seen in the
case of Entick v Carrington. But then again it can only do so much to act as a
shield. In some cases, it is not enough to protect from excessive state power
as seen with parliamentary supremacy. Although it would be difficult to use
this to undermine the rule of law, it is still possible. The rule of law is
clear in its core principles. It attempts to promote equality between all,
regardless of their position. The way it is applied however does lack some
clarity due to factors such as different theorists’ opinions and its history.
Overall it seems that in todays society the rule of law does protect the
individual from excessive governmental power. This is due to the U.K being
constitutionally strong. Its clarity however is debatable due to the vast
number 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, therefore
providing some clarity.
1 Magna Carta 1215
2 Loulla-Mae Eleftheriou-Smith, ‘Magna Carta: What is it-
And Why Is It Still Important Today?’ The Independent (2015)
3 Lisa Webley and Harriet
Samuels, Public Law (3rd edn, OUP Oxford 2017) 81.
4 Ibid 81.
5 ‘The Petition of Right’ (The
6 Petition of Rights 1628
7 Entick v Carrington (1765) 2 Wils
275, 19 State Tr 1029 1065
8 S.41 of the Terrorism Act 2000
9 Lisa Webley and Harriet
Samuels, Public Law (3rd edn, OUP Oxford 2017) 80.
10 Article 6 of the European
Convention on Human Rights
11 ‘The Petition Of Right’ (The
Rights Act 1998
13 Article 6 of the European
Convention on Human Rights
Crime and Security Act 2001
15 S.41 of the Terrorism Act 2000
16 Unknown, ‘The Rule of Law as Political Theory.’
(university unknown 2013)
18 Habeas Corpus Act 1679.
19 Andrew Altman, Critical Legal Studies A Liberal Critique
(3rd edn, Princeton press 1993) 52.
20 Lisa Webley and Harriet
Samuels, Public Law (3rd edn, OUP Oxford 2017).
22 Webley (n 1) (94)
23 AV Dicey, Introduction to the study of the law of
constitution (5th edn, London: Macmillan) pp 179 – as cited in Lisa
Webley & Harriet Samuels Public Law (3rd edn 2017).
24 Unknown (n 1)