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16 Cards in this Set
- Front
- Back
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Intro: Lord Bingham |
"the core of the existing principle is... that all persons and authorities within the state whether public or private, should be bound by and entitled to the benefit of law, publicly promulgated and publicly administered by the court" |
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Joseph Raz - Content Free |
1. prospective 2. open and clear 3. stable 4. following clear rules 5. natural justice should be observed 6. courts - easily accessible 7. crime prevention agencies - not much discretion |
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Problem with Content Free |
1. An evil legal system can still be considered to be in compliance with the ROL 2. Place too much power in the hands of the political elite - able to dictate laws (as long as it passed using the proper methods) |
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Defender of Content Free Doctrine |
1. Adds objectivity and independence to the ROL 2. Different people will have different views of what is 'good law' - law makers take into accounts all those views = hamper the development of the law. |
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Comment by Paul Craig to doctrine of Content Free |
1. Wish to argue about justice of society, do so by all means. 2. Wish to defend particular type of individual right, then present your argument. However- this view not desirable or necessary to cloak the conclusion in the mantle of the rule of law. |
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Ronald Dworkin - Content Rich
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"It assumes that citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights to be recognized in positive law." |
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Content Rich Meaning |
Must be reflective of and be enforcing of moral rights |
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Problem with Content Rich
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Moral principles mentioned are not universally agreed upon |
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Professor A.V. Dicey Definition of ROL |
1. No man is punishable or can be lawfully made to suffer in body or in goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law contrasted with every system of government based on the exercised by persons in authority of wide, arbitrary, or discretionary powers of constraint. 2. No man is above the law; every man and woman, whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals; 3. The general principles of the constitution (eg, the right to personal liberty, or the right to public meeting) are, with us, the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. |
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Problem with Dicey's Definition |
1.People can be made to suffer without having done anything wrong - Burmah Oil, remand, power to search, A v Secretary of State for Home Department 2. Government officials do have a wide power in certain areas - Inland Revenue Commissioners v Rossminster Ltd 3. Judicial Review - Officials are not treated equally due to many requirements that need to be satisfied 4. Courts do not stand up for the rights of citizen - M v Home Office, Madla - and also because of Parliamentary Supremacy - Liversidge v Anderson |
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A v Secretary State for the Home Department |
A and others v Secretary of State for the Home Department [2004] , (also known as the Belmarsh 9 case) UKHL 56 is a UK human rights case heard before the House of Lords. It held that the indefinite detention of foreign prisoners in Belmarsh without trial under the section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights. |
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Inland Revenue Commissioners v Rossminster Ltd. |
Held: The claim failed. The House invoked the presumption of regularity ‘omnia praesumuntur rite esse acta’. In the absence of evidence to the contrary it was assumed that the judicial officer who issued warrants conscientiously carried out his duty, and so it could be assumed he had before him sufficient information to establish the necessary grounds. |
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Mandla |
HOL: Overturned COA's decision Courts held that Sikhs were a racial or ethnic group. |
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M v Home office |
The Home Secretary deported a foreign citizen (of Zaire) contrary to a judge’s order Home Secretary = Contempt of Court |
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Liversidge v Anderson |
"an example of extreme judicial deference to executive decision-making, best explained by the context of wartime, and it has no authority today."[1] It is therefore mainly notable for the dissent of Lord Atkin. -Courts = powerless = due to Parliamentary Supremacy |
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Prof John Griffiths opinion on ROL?
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Not a useful concept - It's being hijacked by partisan politicians to justify their version of what is right and to stifle dissent! |
