Rule of law flashcards

Definition of the rule of law

The principle that every person and institution, whether public or private, is subject to publicly disclosed, independently adjudicated set of laws.

Albert Venn Dicey’s views - legal theorist that coined the name and developed the concept

1. An absence of arbitrary power of the state

2. Everyone must be equal before the law

3. The law must be supreme

Theorist 2: Lord Bingham - legal theorist and reformer

1. The law should be clear and accessible

2. Governed by law not discretion

3. Equality before the law

4. State power should be used reasonably and in good faith

5. Dispute resolution in the civil courts without delay or excessive cost

6. The state should protect human rights

7. The state should provide fair trials

8. International law should be respected as national law

Friedrich Von Hayek - an economic theorist that investigated the need for a stable ‘rule of law’ in economic development

1. Fixed and announced rules

2. Limited government power

3. Protection of individual rights

4. Importance of an independent judiciary

5. Evolutionary theory of law

Structure for this question

Definition, One point from Venn Dicey developed as a paragraph, One point from Bingham as another and then another Bingham point both as developed paragraphs, One Von Hayek point developed. This should explore where the point can be seen as being in place in some areas and as being undermined in others.

The Venn Dicey paragraph

AVD theories - Everyone must be equal before the law, there must be an absence of arbitrary power of the state, and the law must be supreme.

Key point - Everyone must be equal before the law

Evidence for - Dytham, Miller 1 + 2, anyone can be taken to court, Sargent Blackwell

Evidence against - Cuts to legal aid budget, Harry Dunn case - diplomatic immunity

Bingham paragraph 2

Key point - The state should protect human rights

EF - Writ of Habeus Corpus, ECHR and Magna Carta, Art 6 (2) presumption of innocence/golden thread

EA - Belmarsh case, R v Thompson and Venables, William Begg’s case, R v R

Bingham paragraph 3

Key point - State must provide fair trials

EF: Jury trials, appeal system, public viewing galleries

EA: Pinochet’s case, issues of jury trials, funding issues

Van Hayek paragraph 4

Key point -Fixed and announced rules

EF: Sentencing act 2020, Law commission and it’s purpose

EA: Tricky legislation OAPA 1861and Section 4(4) of the theft act, legal representation a necessity, common law is hard to understand - Knuller v Shaw