Introduction to the Nature of Law

Laws definition

Set of rules created by law makers imposed on all citizens of a state

Rule Definition

Defined by Twinning and Miers

- General norm, mandating or guiding conduct"

Followed to avoid sanctions/social disapproval

Connection between Law and Morality + Justice

Moral standards of a community can influence law but in complex societies morality + law cannot always align

eg

1. Airdale NHS Trust v Bland - Law allowed doctors to withdraw life support machine, people may see this as undermining sanctity of life - morally wrong

2. Abortion act 1967 - Reflects the majority public opinion, some might see it as wrong

3. Re B (Refusal of Medical Treatment)(2002) - Law allowed her to refuse treatment leading to her death although many would see this as morally wrong

- Law Upheld autonomy over the moral view of sanctity of life over

4. Re a Conjoined twins - Court overruled parents religious views (autonomy) to authorise a life saving operation

- Law prioritises objective reasoning + best interests over the moral view of it being wrong to kill one child to save the other

Differences between law and Morality

1. Morality cannot be changed quickly but slowly changes over time, Law can be quickly altered deliberately

2. Morality relies on individuals sense of shame/guilt to be enforced rather than legal sanctions enforced by law

3. Morality is voluntary, law is obligatory + enforced by legal sanctions

Justice

Difficult to define + can be different to different people

Lord Wright - "What is just in a particular case is what appears just to the just man, in the same way what is reasonable appears to be reasonable to the reasonable man"

Justice can be seen as applying the law in the same way to all people but even this rigid application can lead to injustices

eg

- North Eastern Railway v Berriman - Ds was family was not given compensation as V was maintaining the track and not "Relaying or Repairing"

- Robinson v Chief - Police injured old woman while making an arrest, court held she was not eligible for compensation as police did not owe her DoC

- DPP v Cheeseman - D was acquitted of indecent exposure as it was not to the annoyance of passengers as the undercover police officers were not classed as "passengers"

Key elements of the Rule of Law

A V Dicey:

1. An absence of arbitrary power of the state - states power should be controlled by law

2. Everyone must be equal before the law

3. Law must be Supreme

Criticims of A V Diceys views

1. Not everyone is equal before the law - corporation, wealthy individuals have more legal resources

2. Based on abstract, unrealistic views - in reality wealth, status, race affect how people are treated in court

3. Conflicts with Parliamentary Supremacy - Rule of Law suggets there should be no arbitrary power yet Parliamentary Soverignty allows state to Grant itself Arbitrary power

- Rule of law tries to limit parliament power, Sovereignty allows unlimited power

- Case of Proclamations (1610) - Monarch cannot exercise arbitrary power or create new laws without parliamentary consent

4. ROL says law should control all power - Court cannot judicially review acts of parliament, parliament is above the law

Von Hayek

Agreed with Diceys view

Agreed that the key component of the Rule of Law is the absence of arbitrary power from the state

Joseph Raz

Saw the ROL as a "Negative Value"

Rule of Laws purpose it to minimise the danger of the use of discretionary power in an arbitrary way rather than preventing it completely

Tony Honore

Believed Rule of Law exists when a governments powers are limited by law + is bound to uphold this core of citizens rights

Three main points:

1. Everyone should be sanctioned in accordance with the law, in both civil + criminal cases

2. Equality before the law, no discrimination on any grounds

3. Must be fairness + clarity of the law

- Constitutional Reform Act s1 2005 Recognised + supported these principles

Lord Bingham 8 principles

8 Points essential to the Rule of Law

1. Law must be accessible, intelligible, clear + predictable

2. Questions of legal right + liability should be resolved by the application of the law

3. Laws should apply equally to all, apart from when objective differences justify differentiation

4. Law must adequately protect fundemantal human rigghts

5. Law must privide means to resolve civil disputes they are unable to resolve themselves, without excessive cost/delay

6. Minister+ public officers must exercise power reasonably + in good faith, none of them are above the law - R (Miller) v The Prime Minister

7. Adjudicative procedures provided by the state should be fair

8. The state must comply with International Law

Importance of the Rule of Law in Law Making

The Law-making process must be open + fair,

- Acts have to be passed by both houses in parliament

- The elected government has a majority in the House of Commons

- All laws pass through House of Lords

- Delegated legislation is controlled + limited by parliament and can be challenged by judicial review

All prevents Abuse of Power + holds eachother accountable, reinforcing democracy

Importance of the Rule of Law in The Legal System

- Every Defendant has a fair trial + No one can be imprisoned without trial

- Trial by Jury - maintains fairness + protects citizens rights

Importance of the Rule of Law in the Civil Justice System

- Should be Accessible + Affordable

- Should be Free from Discrimination, Corruption + Not Influenced by Public Officials

Importance of the Rule of Law in Criminal Law

- Law are aimed to protect people eg Murder, Manslaughter

- Laws are aimed to protect peoples property eg Burglary, criminal damage

- Other laws on pollution, food regulations also aim to protect people

- Offences have a Maximum Penalty the court cannot Breach

Importance of the Rule of Law in the Law of Tort

- Many Torts are aimed to protect people/property + give the right to compensation

- Public funding to make a claim no longer available - Not everyone is equal before the law + affects everyones right to make a claim

Importance of the Rule of Law in Contract Law

- Recognises consumer may have little choice when making a contract with a business, there is not equality between parties

- Therefore provides rights for consumers eg The Sale of Goods Act 1979, Consumer Protection Act 1987

Importance of the Rule of Law in Human Rights Law

- D should always have access to legal aid + chance to prepare defence

- Both parties should be treated equally in Tort

- Liability should be decided by independent judge according to principles of law

R (Miller) v Prime Minister

Upheld the Rule of Law

Government is not above the law - Supreme Court upheld the legal limits of the Government