The Rule of Law is a doctrine that, when followed within a State, provides guarantees that all will be subject to the law, that the law will be enacted through democratic means and that the law is morally good." - Discuss

However there is also evidence of the Rule of Law in the UK not ensuring that all are subject to it.  Jennings argued that the idea of equality was as indistinguishable as the notion of the Rule of Law.  This is because there are so many exceptions from the law "that the statement is of doubtful value".  Crown and diplomatic immunities can lead to inequality before the law, for example, the Queen as the head of the country cannot be charged of crimes (“Against the King law has no coercive power”) and the only way to convict her would be to strip her of her crown and title and then convict her the same way as an ordinary citizen.  However this is unlikely and therefore it shows that not everyone is subject to the law in the UK despite what some theorists would claim.  Also the police have powers over citizens and also powers above citizens to govern them.  The government can use the Royal Prerogative to infringe on the rights of others.  These all show that in the UK, in practice, everyone is not subject to the law.

The second issue in the question is that the Rule of Law guarantees that the law is enacted through democratic means.  All actions made by government “must be shown to have a strictly legal pedigree”.  This means that the law cannot be retrospective unless it is entitling people to more rights.  However in the UK this hasn’t been happening and there have been incidents where the government has tried to introduce retrospective laws running contrary to the idea of democracy which is supposed to be supported by the Rule of Law.  One such case is that of Burmah Oil v Lord Advocate (1965) that illustrated that laws will be enacted through undemocratic means and so the Rule of Law cannot guarantee that law will be enacted democratically.

Another issue related to the Rule of Law and democracy is the separation of powers.  There must be a separation of powers between the Legislature, Executive and Judiciary to ensure that laws are enacted democratically and to ensure one institution cannot overpower its counterparts.  However, the Burmah Oil case illustrated how limited judges are at upholding the rights of citizens against the legislature and ultimately how overpowered the judiciary is by parliament.  This also acts as proof to commentators who argue that the "separation of powers is the necessary condition for the Rule of Law in a modern society and therefore in a democratic society."  This shows that the Rule of Law can guarantee that the law can be enacted through democratic means but only if supported by a separation of powers.

Another part of Dicey’s theory, which relates to the law being democratically enacted is that the law should not be arbitrary, meaning that the same laws should be applied to everyone in the same way.  The Rule of Law works to restrict and prevent the abuse of discretionary powers held by officials.  This is because discretionary powers lead to choice and inconsistency, which runs contrary to the idea that laws should be enacted through a democratic means.  In the UK an example of a discretionary power is that the Home Secretary has the discretionary power to allow asylum seekers who fall outside the Humanitarian Protection Policy to stay on a discretionary basis.  However the problem with discretionary powers is that it is hard for individuals to know their rights, which is one of the main focuses of democracy.  It also makes this power very difficult to challenge in a court and so discretionary powers under the Rule of Law do not allow for the law to be enacted in a democratic way.

The third point in the quote is that the Rule of Law guarantees that the law is morally good however this is an issue widely disagreed about between critics.  Professor Lon Fuller, argues that the Law can be morally good if the legal system respects the moral requirements he set out.  If a society fails to do that then he argues that they do not have a legal system.  Fuller also argues that the law must serve the interests of the people it governs and so "pursue altruistic moral ends” to have any recognition as a legal system.

However, for Marxists the law is seen as immoral as it doesn’t serve a national interest, but instead upholds the status quo and protects the ruling class at the expense of the proletariat.  It is seen as an Ideological State Apparatus, which does what the state needs to succeed in oppressing and exploiting the masses, and not serve the interests of the whole state.  They believe that only when capitalism is destroyed and the law "withers away" will people be free to live in communes without law.  For Marxists, this is a more moral state than in a society governed by the Rule of Law.  

Using John Rawls' Theory of Justice it can be said that the Rule of Law has created a law, in the UK, that is morally good based on the theory of redistribution.  According to Rawls, the law can be morally good if it helps to distribute goods to the less fortunate in that society and works for the greater good of the society.  In the UK that can be seen in the mechanisms of the welfare state and organisations such as the NHS and Legal Aid which is now making a come back.  Therefore using Rawls, the Rule of Law in the UK is enforcing a law that is morally good.  Whether the Rule of Law guarantees that the law is morally good tends to depend on your theoretical perspective.

In the UK an example of the law becoming moral is the case of R v R (1991) where the Court of Human Rights argued that convicting a man of raping his wife illustrated a move towards greater equality between sexes and morality in the law.

So, in the UK it can be argued that it has encompassed these 3 factors into its version of the Rule of Law to a certain extent but it can’t be confidently said that the Rule of Law will guarantee these things in their absolute natures.  Each state can use them in the proportions it sees necessary and so it can be fairly safe to conclude that the Rule of Law doesn’t guarantee any of these factors but they can be seen (in varying quantities) in states claiming to follow the Rule of Law.

Annotated Bibliography

Barnet, H., Constitutional and Administrative Law, 5th Edition (London: Cavendish Publishing Limited, 2004).  Chapter 4 outlines the theorists and their views on the Rule of Law and the factors the Rule of Law of must encompass.  It was also used to discuss the relationship between the clarity of the law and democracy with the Rule of Law.  It can be used to elaborate on the theories of Marxists, Joseph Raz and John Rawls and their views on whether the Rule of Law needs the law to be moral.  It also can be used to elaborate on what Dicey says about equality before the law, arbitrary legislation and retrospective legislation.  It can then be used to criticise Dicey’s theory in more detail.  Chapter 5 can be used to elaborate on the concept of the separation of powers and how it is connected to the rule of law. Chapter 7 can be used to discuss the relationship between the rule of law and parliamentary sovereignty and whether this is democratic. Chapter 18 can be used to link parliamentary privileges to the idea of everyone being equal before the law.

Wade, H. W. R. and Forsyth, C. F., Administrative Law, 9th Edition, (Oxford: Oxford University Press, 2000).  Pages 20-22 were used to discuss discretionary powers and their relation to the Rule of Law in terms of everyone being subject to the law and not being arbitrary or retrospective.  They can be used to further discuss this point.

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