Freedom prospers when religion is vibrant and the rule of law

under God is acknowledged.1

-Ronald
Reagan
The question requires us to analyse the rule of law and the theories
associated with them, as well as express our views.
The rule of law in essence means the government and private
citizens must act under the law. The rationale behind it is to control
the exercise of public power by the state ensuring that it is
exercised strictly within legal limits.2 The rule of law has a number
of different interpretations. It is now generally understood as a
doctrine of political morality, which concentrates on the role of law
in securing the correct balance of rights and powers between
individuals and the state in free and civilised societies.3
Lord Woolf stated, One of the most important of the
judiciarys responsibilities is to uphold the rule of law, since it is the
rule of law which prevents the Government of the day from abusing
its power.4
The rule of law has been closely associated with Dicey in the United
Kingdom. He in particular argued that the constitution rested upon

1 Available at http:/
/brainyquote.com/quotes/keywords/rule_of_law.html accessed on
28th April 2014
2 M Ryan, Unlocking Public Law (2nd edition, Routledge, 2010) 93
3 A Carroll, Constitutional and Administrative Law (6th edition,
Pearson Education, 2011) 46
4 Lord Woolf in The Rule of Law and A Change in The Constitution
[2004] 64 CLJ 317

the twin pillars of parliamentary supremacy and the rule of law.5

Diceys views have continued to exert their influence, despite many
challenges, and it is this influence, which requires examination.6
There are three postulates to the rule of law.
The first aspect is that no man is punishable without a breach of law.
This postulate can be broken down into two elements. Element one
is an individual is only punished for a breach of law. Dicey argued
that an individual can only be imposed a punishment if he had
violated the law that had been established by the courts. The first
strand encapsulates the general idea of the rule of law that action
must have a legal basis.7 The principle had been a key requirement
to the constitution since Entick v Carrington.8The second element is
the predominance of the regular law. In essence, Dicey argued that
the rule of law indicated the predominance of regular law as
opposed to the exercise of arbitrary power. The use of regular law
can be controlled as they had a clear legal origin and reasonably
accurate to its extent. Such discretionary powers could be used to
the detriment of the individual himself. AS Dicey asserted, wherever
there is discretion there is room for arbitrariness.9 Regular law
vitally limited the use of state power. However, wide discretionary
powers lacked clear ascertainable legal rule of men. For an
5 M Ryan, Unlocking Public Law (2nd edition, Routledge, 2010) 103
6 H Barnett, Constitutional & Administrative Law (Tenth edition,
Routledge, 2013) 57
7 E Giussani, Constitutional and Administrative Law (1st edition,
London Sweet & Maxwell, 2008) 65
8 Entick v Carrington (1765) EWHC KB J98
9 M Ryan, Unlocking Public Law (2nd edition, Routledge, 2010) 104

individual to challenge government officials would be very difficult.

Arbitrary power is characterised by the lack of clear legal limits.
State officials are permitted to act in a manner that is both
unregulated and effectively unchallengeable. In a simple manner,
Dicey is implying that his first aspect is to prevent retrospective law
as well as to prevent abuse of power. There are critiques relating to
the first strand. It is noteworthy in the first element indicated that
an individual could suffer in body or goods without having violated
a law. Under the Bail Act 197610, an unconvicted defendant can be
remanded in custody before his criminal trial. There are, sound
public policy reason for the authorisation of the detention of such an
individual. Under section 1 of the Police and Criminal Evidence Act
198411, authority is given to the police officers to stop and search a
person or a vehicle for stolen or prohibited articles provided the
officer may detain the person or vehicle in question for the purpose
of the search.12 Parliament can pass a law, which authorises the
indefinite detention of non- United Kingdom nationals suspected of
terrorism. In A and others v Secretary of State for the Home
Department13, it was noted that owing to the doctrine of
parliamentary sovereignty, this decision of the court did not
disapply the 2011 Act; instead it merely alerted Parliament and the
government that the Act violated the European Convention. The
10 Bail Act 1976
11 Police and Criminal Evidence Act 1984
12 M Ryan, Unlocking Public Law (2nd edition, Routledge, 2010) 105
13 A and others v Secretary of State for the Home Department
[2004] UKHL 56

final matter to element 1 is that local authorities typically have

powers of compulsory purchase, which empowers them to
compulsorily purchase private property.14 Element 2 of Diceys
strand question the discretionary powers, and if they are open to
abuse in the modern British constitution. Parliament can simply pass
whichever law it chooses. In Inland Revenue v Rossminster Ltd15, the
House of Lord reversed the decision of the Court of Appeal and held
that the warrants were lawful as they had been in accordance within
the legal authority. In Commissioners of Customs and Excise v Cure
& Deeley Ltd16, the court held that regulation purported to confer on
the Commissioners the powers of a judge and it tried to oust the
jurisdiction of the court.
The second aspect is that no man is above the law. Dicey argued
that all individuals are under the ordinary law. Dicey was implacably
opposed to government officials having special legal privileges and
immunities.17 If a state official breached the law, he would be
treated in the same way an ordinary individual would be if they had
violated the law. Before the courts, the same law would be applied.
Diceys principle of equality under the law is illustrated in the case
of Entick v Carrington18. The principle that everyone is equal under

14 M Ryan, Unlocking Public Law (2nd edition, Routledge, 2010) 106

15 Inland Revenue Commissioners and Another v Rossminster Ltd
and others [1980] AC 952
16 Commissioners of Customs and Excise v Cure & Deeley Ltd
[1962] 1 QB 340
17 A, Carroll, Constitutional and Administrative Law (6th edition,
Pearson Education, 2011) 50
18 Entick v Carrington (1765) EWHC KB J98

the law is illustrated by the case of M v Home Office19. It was firstly

held that the court did have the jurisdiction to make coercive orders
against ministers of the Crown. Secondly, the court possessed the
jurisdiction to make a finding of contempt of courts against a
government minister should he ever ignore an injunction made
against him. The critiques brought forth for Diceys second strand
included the rule of law and judicial review. Although Dicey
disapproved of the French administrative law system, the United
Kingdom has developed a separate form of administrative law,
which is somewhat similar to that of the French system. In this
manner, the state and its officials are not being treated in the same
way as ordinary individuals. In fairness to Dicey, however, the
process of judicial review is an area of judicial activity, which has
only really exploded recently. In this modern day, many disputes are
not brought before the courts but instead settled by tribunals.
The third aspect states that the courts are the best protection of
human rights. Dicey contrasted the English constitution with
constitutional arrangements pertaining elsewhere, in which the
rights and freedoms of the individual derived from a written codified
constitutional document embracing a Bill or a Charter of Rights.20
The criticism that came with the third strand existed because the
remedies that fashioned by common law can be used against state
officials, as well as other individuals. The courts have been selective
as to which remedies the grieving party can employ. Although
19 M v Home Office [1994] 1 AC 377
20 M Ryan, Unlocking Public Law (2nd edition, Routledge, 2010) 113

Parliament can pass legislation conferring legal remedies on an

individual, the Parliament can also pass laws interfering with the
liberties and freedoms of the individual. The courts would be
rendered powerless in these circumstances. The Human Rights Act
1998 equips judges with greater powers to scrutinize the executives
acts. In A v Home Secretary21, the Lords held that evidence that
might have been obtained by means of torture committed abroad by
foreign agents is inadmissible in special immigration proceedings.
The third postulate simply focuses on human rights.
On 16 November 2011, Lord Bingham gave a speech on the rule of
law. The Constitutional Reform Act 2005 states, the Act does not
adversely affect the existing constitutional principle of the rule of
law. The latter may no doubt have been thought to be too clear and
well understood to call for statutory definition. Joseph Raz , who is a
theorist, commented on the tendency to use the rule of law as a
shorthand description. The core principle is that all persons and
authorities within the state, whether public or private, should be
bound by and entitled to the benefit of laws publicly and
prospectively promulgated and publicly administered in the courts.
Lord Bingham had identified 8 rules.
The first and foremost is the law must be accessible and so far
as possible intelligible, clear and predictable. Despite the internet,
the legislation raises serious difficulties of accessibility. The fault is
not on the legislators alone. The Lord added three vital caveats to
21 A v Secretary State for the Home Department [2005] UKHL 71

his speech. First, whatever the diversity of opinion the judges should
recognise a duty, not always observed, to try to ensure that there is
a clear majority ratio. Secondly, the sub rule under consideration
does prelude excessive innovation and adventurism by the judges.
The third, and importantly, all these points apply with redoubled
force in the criminal field. The judges may not develop the law to
create new offences or widen existing offences. The second limb is
questions of legal right and liability should ordinarily be resolved by
application of the law and not the exercise of discretion. The
essential truth of Diceys insight stands. Lord Bingham emphasises
that discretion imports a choice between two possible decisions and
orders, and usually the scope for choice is very restricted. There is
in truth no such thing as an unfettered discretion, judicial or official,
and that is what the rule of law requires. The third sub rule is that
the laws of the land should apply equally to all. It would be
comforting to treat the sub rule as of things of the past only.
However, it would unrealistic, as the treatment of non -nationals
here and elsewhere reveals. The fourth limb is that the law must
afford adequate protection of fundamental human rights. Universally
this would not be accepted as being in line with the rule of law.
Professor Raz, an academic opinion, wrote that a non- democratic
legal system based on the denial of human rights. Lord Bingham
claimed that he recognise the logical force of Razs contention but
refused to accept it. The rule of law must require legal protection of
such human rights, as within the society, are seen as fundamental.

The fifth sub rule is that means must be provided for resolving,
without prohibitive cost or inordinate delay, bona fide civil disputes
which the parties themselves are unable to resolve. Everyone would
be bound by and entitled to the benefit of the law that people
should be able to stand before the courts for determination of their
rights and liabilities. The rule of law plainly requires that legal
redress should be an affordable commodity. The sixth limb
expresses what many would, with reason, regard as the core of the
rule of law principle. This sub rule reflects the well -established and
familiar grounds of judicial review. The seventh limb is that
adjudicative procedures provided by the state should be fair. The
general arguments in favour of open hearings are familiar. The
principles have raised questions in which the first concerns
disclosure, since the prosecutor may be in possession of material,
which he is for public interest reasons unwilling or very reluctant to
disclose to the defence. Lord Bingham believes that the solutions
brought forth, even though it is not ideal, do not infringe the rule of
law. The final limb is that the existing principle of the rule of law
requires compliance by the state with its obligations in international
law, the law which whether deriving from treaty or international
custom and practice governs the conduct of nations. Lord Bingham
added that he does not think the proposition is contentious.
There has been much debate whether the rule of law can exist
without democracy. Some have argued that it can. But it seems that

the rule of law does depend on an unspoken but fundamental

bargain between the individual and the state.
The view an unjust law is no law at all was used by St.
Augustine and is strongly associated with natural law theorists, such
as Thomas Lon Fuller. He parted company with much of the earlier
natural law tradition, rejecting Christian doctrines of natural law and
seventeenth and eighteenth century rationalist doctrines of natural
rights. To Fuller, the most fundamental tenet of natural law is an
affirmation of the role of reason in legal ordering.22 These principles
he described as an internal morality of law. They can be described
as morality because they set up standards for evaluating official
conduct. Fuller deals only cursorily with the relationship between
form in which legal rules are expressed and their content. He wrote
that order itself will do us no good unless it is good for something.
Thomas Lon Fuller is a naturalist.
Natural law thinking has occupied a pervasive role in the
realms of ethics, politics, and law from the time of Greek
civilisation.23 It has essentially afforded a moral justification for
existing social and economic systems and their legal systems.
One of the most respected proponents of this approach is
Joseph Raz. His doctrine contained eight postulates, the first being
the law should be general, prospective, open and clear. The second
is the law should be relatively stable. Next, open, stable, clear and
22 M, Freeman, Lloyds Introduction to Jurisprudence (Sweet &
Maxwell, 8th edition) 61
23 ibid, 83

general rules should govern executive law-making. The fourth is the

independence of the judiciary should be guaranteed. The next
postulate is the application of the law should be accord with the
rules of natural justice. The courts should have a power of review
over law-making and administrative action to ensure compliance
with these principles. The seventh postulate is the courts should be
easily accessible. Finally, the discretion of the crime preventing
agencies should not be allowed to pervert the law.
Marxism by Karl Marx contains arguments against a formalistic
of law perception of the rule of law. Dicey and Von Hayek present a
formidable target for attack from a Marxist perspective. Where
liberalism insists that law is neutral as between persons and classes
and favours maximum liberty for all under the law, Marxism insists
that law represents the interests of the powerful within the
society.24The Marxist perspective is that the law is the reflection of
economic power within society. The law does not serve the interests
of all in society. The hidden reality of oppression and absence of
liberty. The society will only become free when the capitalist system
breaks down. Which, then, there will be no need for law and man
will achieve true freedom.
Lord Binghams eight rules mostly were in line with A.V
Diceys three postulates. Which means, they were very closely
related and vitally very similar. The main difference is Diceys third
postulate, the courts are the best protection of human rights.
24 H, Barnett, Constitutional & Administrative Law (Routledge, 10th
edition, 2013) 52

Thomas Fuller emphasises on Natural Law, and the morality of

human nature that comes with religion and God, while Joseph Razs
ideology focuses mainly on actualism. Here the emphasis has
tended to be on the need for rules and procedures, which ensure
that laws may be used for the protection of rights and not just as a
means of legitimising the use of powers.25
Thus, with reference to the quote by Ronald Reagan, Freedom
prospers when religion is vibrant and the rule of law under God is
acknowledged, it can be concluded that religion is vital in the eyes
of natural law. The Roman Catholic Church holds the view of natural
law provided by St. Thomas.26 Morality which is a major part of
natural law, plays a vital role on the rule of law. Lord Binghams
postulates are much more updated and in sync with lapse of time.
2570 words

25 A, Carroll, Constitutional & Administrative Law (Pearson, 6th

edition, 2011) 47
26
http://en.wikipedia.org/wiki/Natural_law#Contemporary_Christian_un
derstanding accessed on 1st May 2014

Bibiliography/Referencing
Books.
Barnett, H, Constitutional & Administrative Law (Tenth edition,
Routledge, 2013)
Carroll, A, Constitutional and Administrative Law (6th edition, Pearson
Education, 2011)
Freeman, M, Lloyds Introduction to Jurisprudence (Sweet & Maxwell,
8th edition)
Giussani, E, Constitutional and Administrative Law (1st edition,
London Sweet & Maxwell, 2008)
Ryan, M, Unlocking Public Law (2nd edition, Routledge, 2010)
Electronic Sources.
Available at http:/
/brainyquote.com/quotes/keywords/rule_of_law.html accessed on
28th April 2014
Available at
http://en.wikipedia.org/wiki/Natural_law#Contemporary_Christian_un
derstanding accessed on 1st May 2014

Table of Cases
A and others v Secretary of State for the Home Department [2004]
UKHL 56
A v Secretary State for the Home Department [2005] UKHL 71
Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1
QB 340
Entick v Carrington (1765) EWHC KB J98
Inland Revenue Commissioners and Another v Rossminster Ltd and
others [1980] AC 952
M v Home Office [1994] 1 AC 377