LAWS206 W11

The rule of law as a normative concept for the guidance of public action supporters

Natural lawyers

The rule of law as a normative concept for the guidance of public action critique

Positivists claim that giving the rule of law substantive meaning creates untoward and unacceptable certainty

The rule of law as a normative concept for the guidance of public action critique counter-argument

Claims to absolute or a priori certainty and misplaced and misconceive both the concept of the rule of law and the nature of law itself

Constitutional Reform Act of 2005

References the rule of law, stating it does not adversely affect existing principles.

Ambiguity of the Rule of Law

The idea that the rule of law is inherently ambiguous and not self-evident, concept rejected by Lord Bingham

Two types of law

Determinate and indeterminate, meaning whether it is certain or not

Case Study: Morse and the Police (2012)

A case where a conviction for offensive behavior was overturned due to the subjective nature of the offense, evidencing against positivist claum of inherent legal certainty

Default Reaction to Injustice

How courts invoke the rule of law when faced with particular instances of injustice.

Anufoiva Case (2003)

A legal case establishing that the rule of law upholds judicial protection, even for undeserving parties, meaning the rule of law requires that parties be aware of decisions affecting them so they may challenge them

Cornerhouse Research Case (2008)

In this case, a director's independence was upheld against improper interference related to an investigation. This case illustrates that public law decision-making is characterised by judgement, choice, discretion, contradicting positivist claims of absolute certainty

Supranational Concept (law as a suprenational concept)

The rule of law that transcends national boundaries and is upheld in modern democracies.

Universal Declaration of Human Rights (1948)

A document emphasizing that human rights should be protected by the rule of law, indicates institutional morality in the rule of law

International Covenant on Civil and Political Rights (ICCPR)

An international treaty aimed at ensuring civil and political rights, enforceable since 1976, indicates institutional morality in the rule of law

Transnational rights dialogue and the role of modern technology

Many argue these digital communications quicken the reach of the rule of law and entrench its values in liberal democratic theory

Bagent’s case

Held a person may seek public law compensations against the state for a breach of the NZBORA if no other remedy is available

Proposition 5

The rule of law as the foundational norm and ultimate principle of legali

Judicial Protection

The provision of legal safeguards for rights through judicial action, as emphasized in the Anufoiva case.

Common Law Constitutionalism

A movement restraining Parliament's reach regarding fundamental rights through judicial interpretation.

Principle of Legality

A presumption that Parliament does not intend to override fundamental rights via ambiguous statutes.

Necessary Implication

A requirement for a legal implication to be logically inevitable, not just reasonable.

Implied Repeal

The doctrine allowing later statutes to override earlier ones unless the earlier is a constitutional statute.

Constitutional Statutes

Statutes that cannot be repealed without explicit language due to their foundational importance.

Privative Clauses

Statutory provisions directing courts to refrain from reviewing certain administrative decisions.

Anisminic v Foreign Compensation Commission (1969)

A case where a privative clause was rendered ineffective if the decision was ultra vires.

H v Attorney General (2019)

A case clarifying that judicial review is preserved even with privative clauses in effect.

In Extremis Power

Judicial authority exercised in extreme circumstances to disapply unconscionable legislation.

Judicial Review

The process by which courts examine the legality of actions or decisions made by the government.

Lord Stain

A proponent of human rights, asserting that rule of law can challenge parliamentary supremacy.

Transnational Rights Dialogue

The conversation between jurisdictions regarding the implementation and protection of rights.

The Fox Hunting Case (Jackson v Attorney General, 2005)

A case questioning the limits of parliamentary sovereignty regarding unconscionable legislation.

Civil Society

A societal structure characterized by organized institutions that safeguard rights and freedom.

Fundamental Rights

Basic civil liberties protected under law that cannot be easily overridden by legislative action.

Judicial Independence

The principle that the judiciary should be separate from the legislative and executive branches to safeguard justice.