Rule of law

2705 mots 11 pages
Critically evaluate the utility of the ‘rule of law’ to the United Kingdom constitution

A dichotomy exists within conceptions of what ‘the rule of law’ entails. A formal conception seeks to examine only the manner promulgated, the clarity of, and the temporal reach of the law in considering its compliance with the principle, while the substantive conception considers the rights entailed within the law in addition to these formal factors. Although this conflict prevents a uniform application of the principle, its existence highlights that the utility of the principle cannot be absolute, since the conflicting interpretations of its theoretical scope mean that there will also be conflicting interpretations of its practical use. Although some areas exist in which both formal and substantive interpretations will agree on the relevance of the rule of law, the substantive interpretations entails a wider scope to which the rule of law is relevant. To this view, evaluating whether laws comply with the principle of the ‘rule of law’ should include “rights based” evaluation. However, some definition of the rule of law must be kept in mind when considering its utility to the UK constitution.

The Diceyan conception of the rule of law refers to a generality of law: it should be passed in an “ordinary legal manner”, enforced before “ordinary courts”, and its powers should not be “wide, arbitrary or discretionary”. Significant to this generality is the need discussed by Dicey for society’s equality before the law. “No man” should be “above the law”, and all should be subject to “ordinary law” as enforced before “ordinary tribunals”. The repeated need for an “ordinary” legal passage, enforcement, and treatment demonstrates that for Dicey, generality and equality were two of the most crucial considerations to the rule of law. Raz’s positivist expansion is among the most useful discussions of the nature of the principle, making reference to the need for a generality, autonomy,

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