In a modern state the separation of powers must be based on the rule of law - Discuss this statement with specific reference to the constitutional arrangements of the UK.

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‘ In a modern state the separation of powers must be based on the rule of law.’

Discuss this statement with specific reference to the constitutional arrangements of the UK.

Introduction

We now live in a time of modern state that is an idea goes back to the philosophers of the seventeenth century, but its first appearance in the world was the work of the French Revolution. Ever since, the unitary French republic has since been the model for would-be modern states throughout the world. By the end of twentieth century, most countries had built up modern state either by revolution or by peaceful secession.

In a modern state, one of the most distinct and prominent characteristics is democracy. And among the various elements, two of the most important contributions to democratic practice have been the principles of the rule of law and the separation of powers. The central theme of this essay is the link between them as will be seen below, of crucial importance in determining the implementation of the constitution of the United Kingdom. So what is the relation between the rule of law and the separation of powers? Is one based on the other? And if so, is this one based on the other relationship absolute?

In order to answer these questions, I will begin with a exploring of the concept of the rule of law. This part will be divided into three sections that mainly derive from A.V. Dicey’s three limbs of the rule of law.

 

The rule of law

It was A.V. Dicey popularised the famous phrase “the rule of law” in his book Introduction to the study of the law of the Constitution (1885), which illuminated his era and lives on into our own.  It is a concept today we intend to describe a key component of the social and political orders found in the United Kingdom and other liberal democratic states of our time. Historically, it means a western tradition that can be traced back to the Roman republics and was fully developed by the liberal constitutionalism. It is characterized, in the words of Max Weber, by "legal domination."

Our conventional understanding of the rule of law is deceptively simple and straightforward. There should be “a government of laws and not of man”, that is, the decisions made by legal actors-legislators, judges, and other officials-should be governed by certain ideals and standards.

In Dicey’s view, there are three norms that have been considered especially important.

Equality before the law – No matter how mighty the officials are, they should not above the law and beyond its reach. For example, when US president Harry Truman tried to avert a major strike in 1952 by seizing the steel industry, his attempt failed because the Supreme Court called his action unconstitutional.This is, the right to equality before the law, or equal protection of the law as it is often phrased, is fundamental to any just and democratic society. As Dicey noted:

“no man is above the law; every man and woman, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals…”

No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When the people who then have to obey them establish laws, both law and democracy are served. As constitutional law expert John P. Frank writes, "Under no circumstances should the state impose additional inequalities; it should be required to deal evenly and equally with all of its people."

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Limitation on arbitrariness and tyranny No one should be punished, as Dicey put it, “except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land” This idea can trace back to Hobbes (1588-1679) when he suggested the rule of law meant that the sovereign must rule through law, and that any force that the sovereign wielded outside the law he used as a private person and not by virtue of his sovereignty. Similarly, Rousseau (1844-1910) believes the rule of law was the key to the constitution of the general will. For the ...

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