To what extent do the British courts respect the concept(s) of the rule of law? Is this satisfactory?

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To what extent do the British courts respect the concept(s) of the rule of law? Is this satisfactory?

The rule of law is a principle which is intended to advocate the utmost supremacy of the law in the constitution as an entity which overshadows even the monarch. This definition, whilst simplistic, details the main feature of this principle however leading academics despute over the exact nature of the rule of law - how it ought to work and whether, in fact, it is working in UK courts at present. There are two main strands to the conception of the rule of law which will be discussed within this essay in an attempt to define the rule of law and then to assess whether courts in the UK are respecting the principle.

Craig describes the two strands of the principle of the rule of law as ‘formal’ and ‘substantive’, whereas Barber and Dworkin term them ‘legalistic’ and ‘non-legalistic’ or ‘rule book conception’ and ‘rights conception’ respectively. The first of these two conceptions within the rule of law deals with ‘the manner in which the law was promulgated’, and so deals primarily with the nature of the construction of laws itself; this concerns, for example, the procedures which must be adhered to when laws are created, the authorities who have the proper right to create them and for the right reasons. This strand of the rule of law clearly presents a theory grounded purely in the factual elements of law-making. Dicey supports this reasoning and claims that the rule of law means that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land’. This quotation demonstrates the formalist approach as it presents a clear concern for the manner and procedures which are followed in the promulgation of the laws. Dicey also presents a further element of the formalist concept in his theory that ‘no man is above the law’; this clearly concerns the formal issue of who the law is applicable to. The temporal element of law-making, whether laws should be prospective or retrospective, is dealt with in Raz’s formalist theory of the rule of law. Raz contends that laws ought to be prospective in order than people can adjust their behaviour to adhere to laws. Barber asserts that Raz and Dicey’s assessments of the rule of law also contain points relating to the substantive strand of reasoning. This principle holds that the quality and justness of laws should also be taken into account when creating them. Raz’s claim that ‘laws should apply equally to all’ clearly echoes Bingham’s idea that ‘adjudicative procedures…should be fair’. Therefore whilst it is clear that there is some schism between academic opinions upon what can properly be termed the rule of law, there are certainly several key principle which the term embodies and which must be made clear in order to assess the extent to which courts respect them. It is clear that laws should be applicable and applied to everyone within a country, and so this clearly includes the government, and that laws should be created in an open and stable system of rules.

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Raz’s concept that the law should not be changed frequently so that the public can be aware of it can be seen to have been respected by UK courts in the case of R (Purdy) v. DPP. In this case it was held, following an earlier refusal to make a clarification, that the Director for Public Prosecutions has  a responsibility “to clarify what his position is as to the factors that he regards as relevant for and against prosecution” in cases of encouraging and assisting suicide. Although this case does not directly mention the rule of law it does ...

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