SAKHI AHMAD KHAN

THE RULE OF LAW

What is the law?
• Law may influence certain aspects of our society, but most people in the UK and Wales have very little
knowledge of the judicial system is used in those nations. For many, their key recognition arises from
newspaper articles featuring titles like' Murderer sentenced to life;" Young rapist goes free" 'Burglar
arrested.' That sort of headline happens so often that it is not shocking that many people only think of the
criminal law and the courts grappling with this type of case when the statute is stated.
• In fact, the law includes a vast array of circumstances, and England and Wales' judicial system has a
multitude of courts and approaches to deal with various kinds of cases.
It’s good if you start your answer on precedent and other chapters that talk about how the law works. It
will set a great foundation to tell the examiner that you know what you are talking about.
Different Types of Law
Very important as you will have to distinguish and know the details for all these types of laws and in what
courts they are heard. The more different, similarities, and work that you know, the better It will be for your
analysis in the answer.
Although the law includes such a wide range of issues, splitting it into various categories can be useful.
The very first differentiation is that between international and domestic (municipal) law, domestic law can
then be categorized into public and private law; both categories can eventually be broken down into
several various categories. The following are examples of these categories.
• International and national law
• International law is associated with conflicts amongst nations; most of this law comes from conventions
decided upon by the countries' governments.
• National law is the law that exists within a nation: each nation also has its own national law, and often
there are broad variations between the laws of different nations.
• The differences can be seen from the acknowledgment that Scotland does have its own law and legal
framework that is quite different from the law and legal system existing in England and Wales. E.g., while
in both systems, criminal cases are tried by a jury, the Scottish jury has 15 representatives, and a simple
majority of 8–7 can make the decision. The jury of England and Wales, on the other side, includes 12
representatives, of whom at least ten have to decide on the verdict.
Public and Private Law
There is typically a distinct difference between public and private legislation under national law. In some
form, public law affects the state or government, while private law covers conflicts between individuals
or companies. It is important to split both public and private legislation into different categories.
Public law
Public law applies to government arrangements. Public law in the United Kingdom consists of
constitutional/administrative law, tax, and criminal law.
Why is Public Law Important & What Does It Involve?
• Public law is important due to the unequal government-public relationship. The legislature is the only
agency capable of making decisions on peoples' freedoms, and they must function within the rules. If they
are dissatisfied with an official body's ruling, a person will apply for judicial review.
• Public attorneys can practice in various areas of law, including constitutional/administrative law, tax
law, and criminal law. These are slightly different areas of law. For instance, if you were employed in
constitutional/administrative law, you could deal with the NHS, local council, or other government
institutions.
• Criminal lawyers are active in all facets of a prosecution, including trial, police assistance, and appeals.
Criminal law typically involves a lot of reporting!
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• There are several explanations as to why public law is distinct from public law. These have changed over
the years, but it is widely considered as a mixture of the philosophy of subjection and the theory of the
subject.
• The philosophy of subjection implies that the interaction between the citizen and the state and private
law is regulated by public law. The philosophy of the topic implies that public law exists if a citizen
becomes a member of a public body.
• The mixture of these two theories leads to the definition of public law as an area where an actor is an
authority with the power to act arbitrarily. When this body operates as a public entity, it follows public law.
• It does not seem that some areas of law fit into either public or private law. Employment law, for
example, fits into both — the employment contract is a matter of private law, while workplace health and
safety is a matter of public law.
There are three main types of law in this category. These are:
Constitutional Law
• It monitors the system of governing and any controversies that occur over problems such as who is
qualified to vote in the election, or who is qualified to become a Parliamentarian, or if an election was held
by the proper procedure.
Administrative Law
• It governs the operation of state governments and public bodies such as local councils. The right to
judicial review of certain judgments is an important part of this. Judicial review allows courts to assess the
reasonableness of a ruling (or refusal to make a judgment). If not, the judgment will be reconsidered.
Criminal Law
• This specifies the types of traits that are prohibited at the risk of punishment. It is said that a person
committing a crime has violated the state, and therefore the state has the right to charge them. This is so
even though an actual survivor of a crime is often implicated as well.
• For instance, if a criminal performs a burglary offense by breaking into a house and stealing, the state
may sue the perpetrator for that robbery, although the suspect may also seek a private prosecution if the
state fails to provide a representation to the defendant.
However, the state still has the power to intervene and take over the matter even if there is a private
prosecution. If the defendant is found guilty at the end of the case, the judge will prosecute the defendant
for the crime because he or she has violated the state's criminal law. Any reimbursement would
automatically be offered to the survivor, as the situation is not deemed to be a conflict between the Burglar
and the householder. The criminal courts, furthermore, have the authority to order the defendant to pay
compensation to the individual and to render such a decision, as well as to fine the perpetrator.
Private law
• This is commonly referred to as civil law and has many various branches. Trust law, contract, family law,
inheritance law, corporate law, and employment law are the main ones. It is prudent, therefore, to have
some understanding of what sorts of conflict might be present in these areas of law, so consider the
following situations:
- A family claims that their package trip was not in accordance with the tour operator's commitment and
that they were located in a lower-grade hotel than they had arranged for.
- A woman purchased a new automobile and found that the motor was unreliable.
- A man who purchased a new automobile on contract purchase failed to pay the payments because of
the hire-purchase service.
- All these conditions are subject to contract law. Of example, there are many other instances where
arrangements can be concerned. Look now at the next set of situations; they are also civil issues but of a
different nature.
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- In a crash (the tort of negligence), a child's passenger in a vehicle is harmed.
- A family argues that the vibration and pollution from a plant that has just been built near their house (the
annoyance torture) impact their safety.
- An individual is harmed by defective equipment at work (due to negligence, but may also entail the
liability of the workers and/or the obligation of the employer under health and safety regulations).
- A man claims that a false story about him was published by a newspaper that damaged his credibility
(the slander tort).
• All these cases are subject to the law of tort.
- A tort occurs where civil law continues to hold that, although there is no agreement between them, one
person owes another person a certain kind of legal responsibility known as the duty of care, and that duty
of care has been infringed.
- There are a lot of various kinds of a tort, and only some of them are illustrated by the definitions
mentioned. Most incidents are induced by road traffic accidents because motorists owe a duty of care to
anyone who could be hurt by their negligent driving.
• Many private (civil) law sections are focused on specific subjects. Family law includes topics such as
whether a marriage is legitimate, what the criteria are for divorce, and who should have the daily care of
any family members.
- Succession law is concerned with governing who inherits property when a person dies without creating
a will, as well as with the guidelines for making a valid will.
- In the business world, corporate law is very important: it governs how a corporation should be
established, provides formal rules for managing businesses, and deals with shareholders' and directors'
rights and duties.
• Employment law includes a large scope relating to employment, from the original creation of an
employment agreement to termination or unfair dismissal cases.
- In relation to these fields of private law, there are also laws concerning property, copyright and
trademarks, maritime law, and many other subjects, so it can be seen that civil law covers a wide range
of situations.
Distinguishing Between Civil and Criminal Law
• Realizing that civil law is very distinct from criminal law is essential. Criminal law is a branch of public
law. However, civil law falls In the distinct branch of private law. Crime is seen as a crime against the state
and society as a whole because criminal law is part of public legislation.
• Civil law is referred to as private law because the things it deals with are between two persons. All forms
of legislation have different purposes and are dealt with in various courts.

Differences Between Criminal Cases and Civil Cases

There are several distinctions in criminal proceedings and criminal proceedings
The cases take place in different courts.
• In general, criminal cases are heard either in the Magistrate's Court or the Crown Court, whereas civil
cases will be tried in the High court or the county court. (Keep in mind that some civil issues can be
handled within the Magistrates' Court, particularly family cases)
• The person starting the case is given a different name.
- The ones bringing in the cases are known as the prosecutor in criminal cases; however, in civil cases,
they are known as the claimant and previously known as the plaintiff (pre-1999).
- As already mentioned, the criminal case is brought on behalf of the state, and the Crown Prosecution
Service is liable for prosecuting prosecutions, although other state agencies that investigate other types
of crime, such as the Environment Agency or Customs and Excise.
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- The individual (or business) making a claim initiates civil cases.
• The terminology used is different.
- A defendant is proven guilty or not guilty in a criminal case (an alternate way to put it is to claim that the
defendant is accused or acquitted), while a defendant is determined to be innocent or not responsible in
a civil case.
- Those deemed guilty of a crime may be convicted at the conclusion of a criminal case, although anyone
found responsible at the end of a civil case will be required to remedy the matter as far as practicable.
- This is usually done by granting payment in cash, known as damages, although the judge can impose
certain decisions such as an injunction to avoid similar actions in the future or a specific performance
order where the person who violated a deal is required to finish the contract.
• The standard of proof is different.
- It is necessary to prove criminal cases without reasonable doubt.' This is a very strong standard of
evidence and is important as a prosecution might result in a criminal receiving a long jail sentence.
- Civil cases need only be proved' on the chance basis,' a lesser requirement where the judge decides
who is most likely to be right.
- This key distinction in the criterion to which a case must be proved means that although a plaintiff has
been acquitted in a criminal case, a civil case against such a defendant based on the same facts can still
be successful. Cases like these are rare.
- Certain circumstances where civil action can be accompanied by a strong criminal case include
instances involving road accidents. A person may be charged and convicted of a driving crime, such as
passing a red traffic light or driving without due care and consideration; this is a criminal case.
- Anyone who was harmed as a result of the accident or who had lost property may file a civil action and
recover damages. The reality that the suspect was guilty of a traffic crime would make the civil case harder
to prove
Definition of 'Law'
• We have only tackled those areas of law so far and have followed the structure that remains in England
and Wales for a short time. It is now important to explore more broadly what is implied by law in general
and to equate it with principles of morality and justice.
• Giving a concise one-sentence description of law is not possible–indeed, such a concept has been
sought by legal theorists. In the early 19th century, John Austin described the law as an order given from a
superior (state) to an inferior (individual) and imposed by penalties.
• Nonetheless, this definition does not really extend to regulatory laws such as setting out how a will must
be made; nor does it include the principle of judicial scrutiny, where individuals can contest a state
minister's "order." At a period when the law was much less advanced than it is now, Austin wrote, so it is
not shocking that his interpretation does not include all forms of law today.
• Sir John Salmond described the law as' the set of values that the state recognizes and extends to the
administration of justice.'
- This is a much broader definition than that of Austin and is probably the most interesting and closer one
to achieving a workable description of' single-sentence.' Law could also be defined as a structured social
control system.
- It is procedural because the laws laid down in the legislation can be applied through the judiciary and
the legal system, although it could be said that the regulation is concerned in some sphere of social
control in a broad sense.
Law and Rules
• Law usually extends to people across a whole nation. Some laws are applicable only to specific classes
or in rare situations: for instance, many sports have a number of rules to obey, and the punishment
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imposed for breaking the rules may be that a free kick is offered to the other team, or that a player gets
suspended, or that a player is disqualified from playing for a number of weeks or months in serious cases.
- For example, as per the law, street fights against one another are considered to be unlawful, even if there
is consent. Some might say that it was consensual, but it still will be unlawful. To extend the law, even if
after a consent, the fight is taking place in a boxing ring, it will be named as a street fight, and the people
involved in it will be guilty.
• In communities, there are also unwritten' rules.' They come from local tradition or culture, or they may
be related to religious beliefs.
• They impose what is considered the norm for actions by the group. When you violate these laws, others
in the society will disagree with your conduct, but if you fail to do so, there is no legal sanction to compel
you to obey or threaten you. Such normative values are often linked to the concept of morality and sexual
behavior.
Codes of Law
• There has been an attempt in some civilizations or states to create a full set of regulations intended to
deal with any potential situation that may occur.
• This was done by some of the early modern cultures, especially the Roman-era Justinian code.
• A series of 17,000' codes' collected by Frederick the Great of Prussia in the 18th century, which he saw
as a complete and perfect set of laws.
• Napoleon has codified the rules in France, and today this Napoleonic Code forms the cornerstone of
French law. The notion of a complete computer is enticing in principle. This makes the law more available
so that all know exactly what their rights and responsibilities are; Law should be able to adapt and evolve
with society's needs, and a strictly codified structure will preclude these improvements.
Law and Morality
• Communities' moral values set a foundation for how society should function. Morality standards vary
from society to society, though most are likely to ban drastic actions like murder. Morality is often based
on religious ideas: the scriptures of the Bible provide Christian groups with a moral code and the Quran
teachings for Muslims.
- A country's law would generally reflect the ethical principles that most of the nation embraces, but it is
doubtful that the rule will be precisely the same as the specific religious, moral code.
- One such issue is of adultery: it is against the moral compass for both Christians and Muslims but is not
considered criminal in Western nations: nevertheless, it is (although not all) under criminal law in some
Muslim states.
A community's morals and values are recognized as having a deep effect on the development of
legislation, but morality and law are never probable to be co-extensive advanced societies. There will also
be significant violations of a moral code (such as murder and robbery), but there may not be agreement
on other topics.
• There has been a step away from a religious conviction in England and Wales, and this is reflected in the
way the legislation has evolved. Abortion was allowed in 1967, but it is still considered by many to be
morally wrong.
- A restricted form of euthanasia was recognized as lawful with the decision of Airedale NHS Trust v Bland
(1993) when the medical staff was allowed to remove life-support systems from a patient who was unable
to breathe but was in a persistent vegetative state.
- This decision indicated that, regardless of the fact that it would eventually lead him to suffer, they might
cut the patient's feeding tubes.
• Again, many people also believe this is unethical because it refuses to acknowledge human life's
sanctity.
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Differences Between Law and Morality
In the way, the two evolve and the sanctions placed, there are also discrepancies between law and
morality.
• Morality cannot be altered intentionally; it grows gradually and shifts according to people's will. The
legislation will intentionally change the law: this ensures the conduct that was contrary to the law can be
"decriminalized" immediately. Similarly, it can be considered unconstitutional conduct that was legal.
• Morality is optional with repercussions, although usually without official sanction (although some sects
can 'excommunicate'); morality relies on the sense of shame or remorse of the person for its efficacy.
• Morality infringements are typically not subject to statutory adjudication; a formal legal procedure may
decide on infringements of legislation.
Law and Justice
• It is often said that fairness is given by the constitution, but this is not always true. Justice is probably the
ultimate goal the law should strive for, but in every case, it is unlikely that law will ever produce 'justice.'
• First, there's the question of what' justice' entails. Lord Wright reflected on the challenge in determining
justice, saying:' A judge's guiding principle when resolving trials is to do justice; that is law-based justice,
but still justice. We have not found any adequate definition of justice; what happens only to the faithful in
a particular case is what seems fair to the reasonable man.'
• The idea of what justice is might not be the same in some cases for everyone. Equality can be seen as
applying the rules to all people in the same way, but even this will contribute to perceived injustices–
however, the arbitrary implementation of the law can, in effect, result in injustice.
• An area where much discussion has taken place is the amount of force a householder can use on a
burglar entering the home of that person. What's equitable for both sides and equal? Should the Burglar
be permitted to injure or even kill the householder seriously? Can the burglar claim compensation for any
losses that have been suffered?
Rights and Duties
• The law gives people privileges and compliance procedures. Quite often, a balancing act involves the
law, trying to ensure that the rights of one person do not affect the rights of another person. The statute
often places obligations on people in order to maintain the balance.
• Looking at cases, this is easier to understand. Under contract law, where an individual orders a digital
TV from a store, each party will have rights and duties under that arrangement. The shop, for example, has
the right to be charged the negotiated amount for the television, whilst the customer has the right to get a
package in operating order.
• It is also important to easily see the concept of rights and duties in employment law. An employer has a
duty to pay the employee wages, whereas the employee is entitled to sue for any wages owed. A member
of staff has a duty to obey reasonable legal orders while an employer is entitled to expect this and may be
able to dismiss the employee if a serious breach occurs.
- The employer has a responsibility to provide all workers with a safe work environment, whereas an
individual has the right to claim benefits if he is hurt because that obligation has been violated by the
employer.
• Those are just a few of workers' and employees' rights and obligations and this balance of their rights
and duties.
• Even if the parties do not have a contract or arrangement, the law can enforce rights and duties on
individuals. Another consideration is the freedom to use one's own property (including a house or flat) as
another wants.
- The law recognizes that people have the right to enjoy the use of their own lands, but the freedom of other
landowners to enjoy the use of their assets supports that privilege.
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- So the punishment of annoyance requires an argument to be made if one's enjoyment of land is disturbed
by too much noise, haze, smells, or other noises emanating from the property of another.
• The notion of rights and duties can be seen even in criminal law. Criminal law imposes an obligation on
all citizens to obey the law or face punishment. To defend other people or culture as a whole, this
obligation is enforced. In this way, the statute upholds people's rights not to be violated or robbed of their
belongings or anything else that affects the particular crime.
The Rule of Law
The 'rule of law' is a symbolic idea. It is difficult to give a precise meaning to the concept. The best-known
explanation of the 'rule of law' was given by Dicey in the 19th century, but there have been other important
writers on the topic since. These include FA von Hayek and Joseph Raz.'
• Generally, rule of law is known to be defined as "Law is above and equal for all" this meaning is just for
understanding and that it should not be used in the exam paper.
• It implies that no matter who is facing the trial, the law should be the same for all and should be given
equal fines and sentences.
Dicey
Dicey regarded the rule of law to be an important characteristic that differentiated English law from other
European countries. He believed that the rule of law was formed by three components.
An answer without Dicey will fall in the lowest band and probably give you a C or below. Focus on this.
These were:
1. Absence of arbitrary power on the part of the state.
2. Equality before the law.
3. The supremacy of ordinary law.
1. Absence of arbitrary power of the state
• The power of the state must be regulated by the law. The statute will set boundaries on what should or
shouldn't be performed by the state. Actions and judgments of government ministers can be contested
by judicial review in our legal system.
• One of the rule of law's main aims is to prohibit the state from having wide discretionary powers. Dicey
recognized that power could be used unfairly in order to comply with the rule of law, and this should be
discouraged.
2. Everyone must be equal before the law
• No one can be above the rules. It doesn't matter how rich or influential an individual is, and they must
be treated the same way as anyone would. Another aspect of this part of the rule of law is that those who
perform state functions must be responsible for their actions under the law.
3. The law must be supreme
• This is especially true for England and Wales law during Dicey's tenure, as many of the key changes up
to that time were generated by the government instead of by judicial decisions. Today, most laws are
passed by statute, i.e., statutory actions and approved statutes, while judicial decisions also create law.
Problems with Dicey's Views
• A big issue with Dicey's interpretation of the rule of law is that it violates one of the fundamental
principles, that of the sovereignty of Parliament.
• This principle maintains that any other legislation can be overruled by a constitutional act. The principle
further notes that no other party has the power to circumvent or set aside a legislative act
• There should, therefore, be no discretionary control on the portion of the state below the rule of law, yet
under legislative sovereignty, Parliament has the right to make whatever legislation it desires, and these
may include the granting of arbitrary authority to the state.
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• It is also difficult to appeal against the legislation passed by Parliament by judicial review. This is
separate from some other nations where the legislative body is subject to the rule of law, and laws passed
by them can be challenged in the courts.
• Another issue is that in Dicey's principle, equality under the law relates to technical equality. It does not
take into account the differences in wealth, power, and connections between people.
• Real equality can only be accomplished if these inequalities are solved through mechanisms in place.
The cost of bringing civil cases to court, for example, is very high.
• To enable the poorest people in society to enforce their rights and thus be equal under the law, some
form of state assistance is needed to fund their case
• The interpretation of the rule of law by Dicey is focused on abstract ideas. This makes working in real-life
situations complicated.
Dicey played a very important role in English law and especially for the rule of law. The view of dicey is the
essence of the topic so do not miss it.
Von Hayek
• FA von Hayek shared the idea by Dicey that lack of any arbitrary power on the part of the state is the key
element of the rule of law. Writing in 1971, he looks at it this way:' The rule of law removed of all specifics
means that the government in all its behavior is bound by the same rules fixed and planned well in
advance.'
• He believed that the rule of law was becoming weaker because, given that the actions of the state where
authorized by law, then any act in compliance with that law was lawful.
• The democratic state no longer simply has a legislative framework for undertaking the economic activity,
but is involved directly in monitoring and organizing that behavior.
• Such involvement has risen in the 21st century owing to financial issues, with the failure of some
institutions and also the emergence of controversies such as interest rate fixing. Such action is warranted
in light of these, but it contrasts with the definition of the rule of law.
Important for the analysis. Give good detail but less than that of dicey, use this in analysis and compare
the differences and similarities to achieve the highest marks.
Joseph Raz
You must know all these points, however, give only one-liner details. Use all this in analysis about
similarities, differences, who was better, who you agree with, who was accepted. Did any of their point of
view become applicable in the English law?
• Joseph Raz, who also wrote in the 1970s, recognized that the rule of law was a way to control power
rather than completely prevent it.
• He considered the rule of law to be of negative value, acting in an arbitrary manner to minimize the
danger of using discretionary power.
• He felt the key point that arose from the rule of law was that the rules had to be able to guide the actions
of the person.
He laid out a variety of concepts that are drawn from this broader idea.
Some of these are:
1. There should be clear rules and procedures for making laws.
2. The independence of the judiciary must be guaranteed.
3. The principles of natural justice should be observed; these require an open and fair hearing with all
parties being given the opportunity to put their case.
4. The courts should have the power to review the way in which the other principles are implemented to
ensure that they are being operated as demanded by the rule of law.
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• There have been changes in our legal system in the 21st century that support these principles. A major
example is the 2005 Constitutional Reform Act, which acknowledged the rule of law and the importance
of judicial independence.
Writing sections, acts and cases are what will get you the marks. Stand out of the thousands of candidates
appearing in the exam.
Section 1 of that Act states:
'This Act does not adversely affect –
(a) the existing constitutional principle of the rule of law; or
(b) the Lord Chancellor's existing constitutional role in relation to that principle.'
While s3(1) states:
'The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the
judiciary or otherwise to the administration of justice must uphold the continued independence of the
judiciary.'
Human rights and the English legal system
• Under the 1998 Human Rights Act, our law accepted the European Convention on Human Rights. This
has impacted the English legal system in many places. That section provides a brief overview of some of
the key findings.
Precedent
• Section 2(1)(a) of the Human Rights Act specifies that any ruling or recommendation of the European
Court of Human Rights must be taken into account by our courts. It ensures that judges will look into cases
of human rights as well as our own English rule before determining a lawsuit.
Statutory Interpretation
• Section 3 of the Act states that, to the extent possible, all laws (i.e., parliamentary acts and other laws
made in this country) must be enforced in order to be compatible with the European Convention. For
instance, if the wording of a Parliament Act has two alternate meanings, then the meaning that fits with
the European Convention is the one that needs to be used.
Trials
• The right to a fair trial is provided under Article 6 of the European Convention. It ensures that the court
must be equitable in all respects.
• For example, after the case of T v the United Kingdom, V v United Kingdom (1999), the way juvenile
offenders are prosecuted was modified. In this scenario, the Crown Court charged a 10-year-old boy and
an 11-year-old boy for murder.
• The European Court of Human Rights held that it would have been difficult for the boys to understand
what was going on due to the formality of a Crown Court trial.
• It indicated the court was not rational, and the European Convention was infringed. The Crown Court
now has more open guidelines regarding criminal cases in order to comply with the protocol. Of starters,
offenders don't have to sit in jail but sit with their legal counsel. The court often sits for shorter hours to
allow children to have a reduced period of care.
Sentencing
• Where an inmate is sentenced to life imprisonment, a mandatory term to be completed is usually set
before the individual can be eligible for release.
• The Home Secretary (a member of government) used to determine a minimum sentence. The European
Court of Human Rights considers this to be a breach of the Eu Convention. This has been updated so that
judges now have to set a minimum time.
Judicial Appointment
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• In this region, part-time judges had been named for a term of three years. They could then be assigned
for a further three-year period after this time. Furthermore, the nomination was rendered by the Lord
Chancellor (a member of the government).
• The length of the term was extended to five years, as the shorter span was assumed to mean that there
was a possibility that the judges would not be fully independent of the government. This would have been
a European Convention violation.
Know all these parts and give these chunks in your paper to let the examiner know that you know it
all.
Conclusion:
The law revolving the rule of law can be very complex, and there is a constant dispute between equality
and parliamentary supremacy. To date, this has not been resolved; however, given the other parts of the
law, for example, trials, precedent, sentencing, etc., this gap can be efficiently covered by the judiciary
and the government if they go for fairness and not the rigidity of the law.
EXAM ESSAY
'The rule of law is an ideal, but one which can never be fully achieved.' Discuss.