Nature and rule of law

What is the criminal law?

they create criminal offences and punish those who commit them

What is the civil law?

they do NOT aim to punish but to compensate those whose rights have been violated

Difference between enforceable legal rules, principles and norms of behaviour

norms of behaviour:

• ought to be obeyed

• are enforced by disapproval of the community; apply only to those who accept them

  enforceable legal rules:

• must be obeyed

• apply to everyone

What are the statute, custom, common law?

• statute law is created by Parliament through legislation.

• custom law comes about through custom or practice involving the disapproval of the community rather than formal punishment if they are broken

• common law refers to laws that have been developed by the judicial decisions

rule of law (def.)

all people are subject to and accountable to law that is fairly applied and enforced; The process by which the laws are enacted, administered must be fair

Dicey’s views and problem with it

• an absence of arbitrary power of the state

• everyone must be equal before the law

• law must be supreme

• however, it conflicts with principle , that of parliamentary supremacy; also refers to formal equality, disregards difference of ppl in terms of wealth, power.

other views of the rule of law

• von Hayek - believed that rule of law weakened by an interventionist state, modern state is involved in regulating economic activity in conflict with rule of law

• Jo Raz - clear rules and procedures; judicial independence; principles of natural justice; courts should have power to review

rule of law and law making

• the process by which laws are made must be open and fair

• parliament can also delegate its powers - must pass an Act granting power to make regulations

• independence of judiciary

rule of law and legal system

• every D in criminal cases must have a fair trial - trial by jury

• no person can be imprisoned without a trial

• system free from corruption and discrimination

• should be accessible and affordable

rule of law and substantive law

• criminal laws aim at protecting people, such as murder non fatal offences

• civil laws aim at protecting people, their rights and property and give the right to give compensation for damage caused

• HR law supports the rule of law eg all rights must be applied without discrimination, the right can be taken away only if it is in accordance w law

difference between substantive and procedural law

Procedural law regulates the procedures and rules that govern the conduct of legal proceedings, while substantive law defines the rights and obligations of individuals and entities