The Rule of Law (AQA A-Level Law): Revision Notes
The Rule of Law
The rule of law is a fundamental constitutional principle that protects citizens from dictatorship and arbitrary government power. It will be assessed in Paper 3 as an introduction to human rights.
Understanding the rule of law is essential for grasping how constitutional democracies function and how individual rights are protected from state power.
What is the rule of law?
The rule of law is a symbolic idea with no single definition, but it carries significant constitutional importance. The Constitutional Reform Act 2005 recognises this principle in section 1, stating that the Act "does not adversely affect the existing constitutional principle of the Rule of Law."
Lord Bingham, one of the UK's most senior judges, wrote extensively on the rule of law, exploring its complexity and significance in depth.
The constitutional doctrine of the rule of law
In broad terms, the rule of law means:
- No person shall be sanctioned except in accordance with the law – punishment can only be imposed where the law permits it
- All shall be equal before the law – everyone is subject to the same legal rules, regardless of power or status
- There shall be fairness and clarity of the law – laws must be understandable and applied fairly
The rule of law operates as a safeguard against dictatorship by ensuring:
- Government accountability – the government and its officials are accountable under the law
- No unlimited power – no single branch of government can exercise unlimited power
- Checks and balances – an independent judiciary maintains these principles and prevents abuse of power
Academic perspectives on the rule of law
Three influential legal theorists have shaped our understanding of the rule of law:
A.V. Dicey
Dicey identified three core elements of the rule of law:
1. Absence of arbitrary power
The state's power must be controlled by law and can be challenged through judicial review. This principle prevents the state from having wide discretionary powers, which can be exercised without proper checks and balances. Discretionary power, when unchecked, creates opportunities for arbitrary decision-making that contradicts the rule of law.
2. Equality before the law
No one is above the law, regardless of how powerful they are. The law applies equally to all citizens, and those who carry out state functions are accountable for their actions.
Dicey's principle has important limitations – it does not account for differences in wealth. Real equality can only be achieved when the state provides financial support for those who need to access justice (such as through legal aid).
3. Supremacy of ordinary law
This principle is distinct from parliamentary supremacy and may even contradict the idea of preventing arbitrary power, as Parliament has the ultimate law-making authority.
F.A. von Hayek
Von Hayek broadly followed Dicey's principles but offered important criticisms:
- He argued that the rule of law had become diluted because any action permitted by an Act of Parliament is considered lawful, even if it involves arbitrary power
- He pointed out that government regulation of economic activity conflicts with the rule of law, as modern governments inevitably exercise discretionary powers in managing the economy
Joseph Raz
Raz focused on the rule of law as a means to minimise the danger of arbitrary discretionary power. He argued that law must be capable of guiding individual behaviour.
Raz's key principles include:
- Clear rules and procedures – there should be transparent processes for making laws
- Judicial independence – the independence of the judiciary must be guaranteed to prevent improper influence
- Natural justice – the principles of natural justice must be observed, requiring open and fair hearings where all parties can put their case
- Judicial review powers – courts should have the power to review how other principles are implemented to ensure they comply with the rule of law
Rule of law and law making
Under the rule of law, the process by which laws are made must be open and fair.
Parliamentary law-making
Laws made by Parliament go through a structured process involving debates, votes, and checks and balances. This ensures no element of the state exercises arbitrary power.
Delegated legislation
Parliament can delegate law-making powers to other bodies (known as secondary bodies) to make regulations. The rule of law is maintained through:
- Parliament passing an enabling Act that grants specific powers to make regulations
- Parliamentary scrutiny of regulations made under delegated powers
- Judicial review in the courts, which can challenge regulations to ensure the secondary body has not exceeded the powers granted by Parliament
Judicial independence
The independence of the judiciary ensures that judges can prevent or restrict arbitrary exercise of power, particularly by government officials, and resolve disputes strictly according to law in a fair manner.
Rule of law and the legal system (procedural law)
The rule of law requires fair procedures in both criminal and civil cases.
Criminal procedure
The rule of law protects defendants through several key principles:
- Right to a fair trial – every defendant is entitled to a fair trial
- Judicial independence – judges must be free from improper influence or interference
- Trial by peers – trial by magistrates or jury is important for maintaining fairness and protecting citizens' rights
- Habeas corpus – no person can be imprisoned without a trial
In countries where the rule of law is disregarded, people (particularly government opponents) are often detained without trial. Habeas corpus is therefore a fundamental protection against arbitrary detention.
Civil procedure
In civil cases, the rule of law requires:
- Effective dispute resolution – in theory, everyone can resolve disputes through the civil justice system
- Freedom from discrimination and corruption – the system must not be improperly influenced by public officials
- Accessibility and affordability – the system should be accessible and affordable to all
However, there are concerns about access to justice. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly reduced legal aid availability, creating financial barriers for many who seek to bring claims. Alternative dispute resolution methods provide cheaper options for resolving civil disputes.
Rule of law and substantive law
The rule of law applies to different areas of substantive law:
Human rights
Human rights, including the right to a fair trial, are central to the modern interpretation of the rule of law. The protection of fundamental rights ensures that government power is limited and individuals are protected from state interference.
Criminal law
Criminal law maintains law and order by creating criminal offences. The rule of law requires:
- Clear law – all criminal offences must be clearly defined
- Burden of proof – the prosecution must prove guilt beyond reasonable doubt
- Maximum penalties – all offences have a maximum penalty, and courts cannot impose higher penalties
- Protection of society – punishment aims to protect society, which justifies imprisonment where necessary
Civil law
Civil law operates under the rule of law in several ways:
Tort law:
- Aims to protect individuals' rights
- Provides the right to claim compensation for damage caused by breaches of law
- However, financial restrictions from LASPO create barriers to bringing claims, undermining equality before the law
Contract law:
- Recognises that people should be free to make agreements
- Acknowledges that consumers have limited freedom when contracting with large businesses, creating inequality
- The Consumer Protection Act 1987 and Consumer Rights Act 2015 balance this inequality by protecting consumer rights
The tension between freedom of contract and consumer protection illustrates how the rule of law must adapt to address power imbalances in modern society.
Exam guidance
Short and mid-length questions may ask you to:
- Explain elements of the rule of law
- Explain why judicial independence is important to the rule of law
- Discuss the relationship between the rule of law and procedural matters
When answering questions:
- View the rule of law holistically – do not treat different areas in isolation
- Use examples from across substantive law topics to demonstrate understanding
- Make clear connections between the rule of law and other areas you have studied
- Ensure your conclusion is balanced, reasoned, and addresses the question directly
- Use the language of the question in your answer
Remember!
Key Points to Remember:
- The rule of law is a constitutional principle that safeguards against dictatorship by ensuring no person can be sanctioned except according to law, everyone is equal before the law, and laws are fair and clear
- Three key theorists shaped the rule of law: Dicey (absence of arbitrary power, equality, supremacy of ordinary law), von Hayek (concerned about dilution through parliamentary acts), and Raz (law must guide behaviour, courts should review implementation)
- The rule of law applies to law-making (requiring open, fair processes with checks and balances), procedural law (ensuring fair trials, judicial independence, and access to justice), and substantive law (protecting human rights, requiring clear criminal law, and balancing inequalities in civil law)
- Judicial independence is essential to prevent arbitrary exercise of power and ensure disputes are resolved fairly according to law
- Wealth inequality can undermine equality before the law, particularly following LASPO restrictions on legal aid, though consumer protection legislation attempts to balance power imbalances in contracts