It is common consensus that the rule of law is a fundamental, yet “ambiguous concept”, according to Joseph . Craig defines it as a dichotomy- the first being the formal conception, concerning process, and the second being the substantive conception, concerning justice . In Entick v Carrington, the concept can be encapsulated in 1 sentence: action by the government must be authorized by positive law, whether statute or common law . The following submission will aim to analyse whether the HuaWhenua District Council (Prohition of Gang Insignia) Bill 2016 complies with the rule of law by looking at different theorists’ idea of what this entails.
For Dicey, as a formal conception theorist, meaning that the content and morality of the actual law itself does not concern him, one of his 3 major principles is his dislike for the idea of arbitrary power. He believes that “no man is …show more content…
Section 8 states that “No proceedings shall lie against any member…while discharging or purporting to…” the use of the word ‘purporting’ worrisome, as it implies the police are free to do as they wish even if under false pretenses. There are no regulations around this delegated discretion to the executive and no positive law allowing for this enforcement, which further reinforces the legislation’s inconsistency with the rule of law.
Section 4, subsections (a) and (b) could contradict Dicey’s second principle: the equality of the law. He believed that all laws should apply equally across the board, no matter if to the governed or governor . Here, the section specifically lists out a few gangs, omitting other potential gangs or organizations, without legal reasoning as to why these organizations have been singled out, which could be seen as discrimination. However, it could also be argued that this is for the benefit of the
For Dicey, as a formal conception theorist, meaning that the content and morality of the actual law itself does not concern him, one of his 3 major principles is his dislike for the idea of arbitrary power. He believes that “no man is …show more content…
Section 8 states that “No proceedings shall lie against any member…while discharging or purporting to…” the use of the word ‘purporting’ worrisome, as it implies the police are free to do as they wish even if under false pretenses. There are no regulations around this delegated discretion to the executive and no positive law allowing for this enforcement, which further reinforces the legislation’s inconsistency with the rule of law.
Section 4, subsections (a) and (b) could contradict Dicey’s second principle: the equality of the law. He believed that all laws should apply equally across the board, no matter if to the governed or governor . Here, the section specifically lists out a few gangs, omitting other potential gangs or organizations, without legal reasoning as to why these organizations have been singled out, which could be seen as discrimination. However, it could also be argued that this is for the benefit of the