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Rule of law

Previous: Separation of powers

The ‘rule of law’ is a public law concept which describes how society is governed by laws and how laws themselves should be governed. It is not a concept which is written down formally.

What is the rule of law?

The definition of the rule of law has been subject to significant debate by academics in the past. Aristotle mentioned the idea of the “rule of law, not of men”, perhaps suggesting that laws should be followed as if they had been created by some superior powers, not man himself. Dicey, a famous public law academic, defined the rule of law in 3 ways in 1885:

  • The absolute supremacy of regular law. You can only penalise someone if they breach the law.
  • Everyone is equal before the law
  • Individual rights are secured by the ordinary remedies of the common law

In the 20th century, Raz’s view of the rule of law was a narrow one. He said that the rule of law means: everyone, including the government, is ruled by the law; a legal system must be guided by clear, buy xanax india online open principles and the law should be capable of being obeyed. Bingham’s broader definition encompasses elements such as the conformance with human rights and international law: his list of definitions is quite exhaustive:

  • Law must be accessible, clear and predictable
  • Questions must be resolved by legal application and not discretion
  • Laws should apply equally to all unless there are objective differences which justify differentiation (for example, landlords and tenants have different legal rights)
  • The law must afford adequate protection to human rights
  • Means must be provided for resolving bona fide civil disputes without prohibitive costs or inordinate delays
  • Ministers and public officials must exercise conferred powers reasonably, in good faith and without exceeding limits
  • Adjudicative procedures should be fair
  • The state should comply with international law

Issues with the rule of law

The whole idea behind the rule of law is that law and order is better than anarchy, therefore what would happen to the rule of law if the country was under martial law or in a dictatorship. Finally, does the rule of law really reflect morality or accepted principles?

Next: The prerogative

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