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 entailedwithin 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 andsubstantive 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 UKconstitution.
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, neutrality and predictability of legal norms. Laws should be properly passed, and stable, offering open and clear rules that allow citizens to plan for their conduct to be lawful. This requirement for clear guidance means that laws should be prospective not retrospective, and they should be put into place by an independent judiciary. It is important to note that these requirements of the ruleof law, as being of form and not substance, do not consider the content of laws. As such, it has been accepted by Raz that laws can be seen as adhering to the requirements of the rule of law despite being morally objectionable in content. While substantivists such as Sir John Laws and Dworkin have sought to claim that underpinning the rule of law is a backdrop of political theories and specificconceptions of freedom and justice to be identified, the present writer largely rejects such rights-based perception of the law. Instead, it is argued that a distinction exists between the form of the law and the content of the law. As such, evaluation of the utility of the rule of law to the UK constitution shall be conducted primarily with reference to the procedural aspects of law making andlaw enforcement rather than those of conduct. Relevant to the rule of law are considerations of the manner in which the law is promulgated, the clarity of its provisions, and temporal matters such as its ambit as prospective or retroactive. Underlying political and ideological theory should not be taken into account when evaluating a regime’s adherence to the rule of law: the form of a law and thecontent of the law are separate and isolated factors.
One such requirement of legal form can be perceived in Dicey’s vindication that laws should be passed in the “ordinary legal manner”. This would imply a consistency of law-making practices, which can not only ensure a generality between laws, but also a predictability and transparency of the legislative process in accordance with modern...
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