The rule of law’s function is as a primary position in maintaining the separation of powers doctrine which let for the separation of powers to work at its uppermost possible. The rule of law is the opposed of the rule of power. It position for the preeminence of law over the preeminence of person will. But to say this is to address only in the most universal of conditions. As in the case of all theoretical biased principles, the necessities of the rule of law are dispute. The separation of powers doctrine is also a multifaceted and challenge idea, and the amount to which it supports the rule of law therefore depends, in part, on how its necessities are unspoken. This quantity of the Macquarie Law Journal discovers the sense of the rule of law as well as the degree to which the separation of powers – the ideology of separating and complementary power − can be used to move forward rule of law principles. In conclusion, the separation of powers doctrine should be replaced and that the idea of the rule of law should be rejected in favour of the more realistic debate on legality. 27Basically the idea of separation of powers is lie under the study of political science and it also appears in Constitutional study. [28 ] Separation of powers enforces the concept of rule of law where government by law not rules by men. [29 ] Separations of powers are also frequently said in the media and internet blogs by the opposition party of many countries especially in Malaysia. [30 ] In the situation of United States, strict separation could bring delay in administration. [31 ] But the executive is accountable just to the President that makes him has more power in executive. [32 ] The rule of law is popularized by AV Dicey, the British jurist. [33 ] Ironically the country of his origin does not really portrait the concept of rule of law through Separation of Powers. [34 ] Fusion of powers (executive and legislature) in Parliamentary system does not exactly bring bad benefit to the government. [35 ] It can sometimes be positive and in the other time could bring to tyrannical effect. [36 ] Tun Suffian suggested that" Thus in Parliamentary Democracy there is no real separation of powers. [37 ] The executive and legislature lie in one hand while the judiciary is on the second hand. [38 ] Therefore the separation of powers operates at it best when the judiciary organs are truly Although the rule of Law popularized by Dicey, was criticized by many jurists across all administrative system my family essay pdf, it still holds much water in governing the state. It can be considered as the idealistic one. Justice should be done through the known and recognized principles of law. There is a great need of this rule now days. We can clearly see the miscarriage of justice and violation of Law and order everywhere. Parliament have become paralyzed, they are failing to implement the established rules. The corrupt and selfish governments are justifying their cruel legislations in their own way and they call it the rule of law or the supreme Law. We started very well with the supremacy of the law, the law of the land. But gradually there is a vast deviation from the goal that has to be achieved. The systems are collapsing due to the failure of the governing authority. In the monarchial countries or non democratic countries, they molded this Concept according to themselves and for their own benefits. Laws there are in support of the authorities not the public. We know that unlike the other written constitutions, British constitution is not in written form. Here most of the rules were adopted on the basis of Judicial precedents. We can also say it the judges made law. Dicey’s study was actually based on the working of English Constitution so we can see that he advocated this form is better than the written form. In England this rule was followed in many concrete cases even in against the governing authority. In Wilkes v. Woods, a person was entitled to claim the damages against a police officer who wrongfully entered the plaintiff’s premises. This shows that Rule of Law is to be applied to every individual if he does something which is against the Law whether he be a common man or the police officer, as he trespasses the land of other man. Hence we can evolve from here, that the act which is not prohibited by Law is permitted. In case of, Melone v metropolitan police commissioner, the court held the act which is not prohibited by the Law police can only authorized do that. The case was about taping the phone call of the person who was accused of theft. Despite of giving such efficient theory, Dicey’s principle was criticized by many jurists across the world. Dicey was criticized on the ground that, he over emphasized on the supremacy of Law only but was not sure about the correctness or justness of Law. As a consequence there may exist a law which is contrary with the human rights as it is not guaranteed by the constitution. REFERENCES Firstly it was observed in the most celebrated case, was ‘The Case of Prohibition’, which was itself judged by King James IV. The then chief Justice, Sir Edward Coke rejected this on the ground that the ‘Rule of Law’ is not something that is decided by the untrained monarchs. The famous Magna charta in 1215, was considered as the beginning of the Rule of Law in England. In this charter the rule and the power of the King John was limited by the feudal Lords who was governed by the arms. They bargains upon the powers of the king in this charter. Every democracy in the world today custom writing paper service, is the example of rule of law. We can trace out their origin from their ancient theory of nation building. There are two basic conceptions of the ‘Rule of Law’: the formal one and the substantial one. In the formal conception they do not focus on the justness of law, whether a law is just or not. The only thing which is considered is the following of the legitimate rules. We can find the example from the Middle East counties, where the laws are very strict, an eye for an eye and hand for hand. But in the substantial concept go beyond only defining it, it also looks at the justness of law. Dicey’s principle of rule of Law has its own advantage. It serves as the tool to check the arbitrariness in the system and keeping the administrative systems within their limit. http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm accessed on 2nd march 2012 4. Dabcanboulet, ‘Dicey’s views on the rule of law and the supremacy of parliament’,(2002),http://everything2.com/title/Dicey%2527s+views+on+the+rule+of+law+and+the+supremacy+of+parliament 5. Murray Ian curfew essay, ‘The Failure of the rule of Law in Britain’, 2010, http://www.nationalreview.com/corner/274233/failure-rule-law-britain-iain-murray, assessed on 3rd March 2012 6. Raz Joseph, The Rule of Law and Its Virtue (The Law quarter Review) 201 7. Hart HLA, ‘The concept Of Law’, 2nd edn, Claredon Press (1994) 135 It also implies equal subjection of all classes to the ordinary law of the land as administered by the ordinary law courts. It does not exempt the officials and others from the duty of obedience to the law which governs other citizens or from jurisdiction of ordinary tribunals. The concept of rule of law as formulated by A.V Dicey in the 19th century explained it as inconsistent with arbitrary or wide discretionary authority on part of the government. The concept of rule of law is closely associated with the principle of justice and governance, ensuring accountability, answerability and fairness in the protection and enforceability of rights and the prevention and punishment of wrong. No one is suggesting that issues of path dependence pros and cons corporate social responsibility, evolved cultural differences, and entrenched interest groups are problems to be ignored when it comes to reform. The failed attempts to transplant Western institutions to other countries make that abundantly clear.[25] But of the ways that people have tried to organize themselves in society, the most successful have followed essays equality, at least in part, this classical liberal tradition. How these foundations can be improved even further, and how to implement and maintain them in different societies, are questions that are still seeking answers. [10] See in particular, Individualism: True and False, in F.A. Hayek, Individualism and Economic Order. (Chicago: The University of Chicago Press, 1948). [12] Quoted in Kelly, supra note 9, at p. 251. [19] Bruno Leoni made similar points in arguing against legislation. See Bruno Leoni, Freedom and the Law, (Indianapolis: Liberty Fund, 1991), pp. 6, 22. They all started with the principle that it was necessary to substitute simple and elementary rules free online law essays, based on reason and natural law, for the complicated and traditional customs which regulated society in their time. The whole of the political philosophy of the eighteenth century is really comprised in that single notion.[12] [17] For Hayeks classic exposition of the role of knowledge in the price system, see The Use of Knowledge in Society, in Hayek essays on american history, supra note 11. [23] For some of Hayeks (sympathetic) critics on this point, see Kukathas, supra note 10, and Norman Barry, The Tradition of Spontaneous Order, Literature of Liberty. Vol. V, No. 2 (Summer 1982), pp. 7-58. One example of Hayeks controversial policy positions is his view on compulsory military service; see Hayek supra note 1, at p. 143. [8] J.M. Kelly, A Short History of Western Legal Theory essays on writing poetry, (Oxford: Clarendon Press, 1992), p. 236. [24] As a response to this general line of criticism, Barnett argues throughout his book that the formal requirements of the rule of the law do place limits on substance. [2] See Todd Zywicki, The Rule of Law, Freedom, and Prosperity, Supreme Court Economic Review. Vol. 10, 2003, pp. 1-26. The idea of the rule of law would survive howeverif a bit bloodiedthrough the Germanic kingdoms of the Dark Ages. In early medieval political theory, which was dominated by the Church, rebellion against the king was not permitted, but the idea of the king being bound by the law was seen throughout the period. The rule of law was emerging, and England took its role as the leader of this tradition. The Magna Carta was the first step in a process that would culminate in the Glorious Revolution nearly a half-millennium later. Of course even England did not realize the ideal of individual liberty during this long evolutionary period, but it was developing a legal tradition that would set it apart from the Continent. [3] Even more insightful is Hayeks explanation of how inequality is necessary for experimentation and progress. See Hayek term paper writers wanted, supra note 1 essay business ethics, at pp. 42-49. Finally, Hayek and others saw the early United States as taking over the tradition of individual liberty from England, as the colonists objected to the increasingly arbitrary power of the British Parliament. They saw the necessity of a written constitution to limit the power of any particular branch of government, and saw it also as laying down general principles to prevent arbitrary rule. It so happens that this attempt at division of powers has not succeeded[13]. nor did the attempts to limit legislative power to strictly enumerated functions, but certainly the intentions of the Framers were in line with this classical liberal tradition. An important point is that despite appearances, the American constitution was not a product of the rationalist French tradition, as the government emerged from general principles and its structure even a few years later could not have been anticipated by its framers.[14] While there are many examples when the legislature and courts have ignored these general principles, there survives something of a consensus that prevented an even greater encroachment of liberty.[15] The U.S. experience has been another in the long line of imperfect experiments in forming a free society. [7] Hayek, supra note 1, at 162. In The Constitution of Liberty Hayek explains that only equality before the law, and not equality of outcomes, is consistent with a free society. Material inequality is in fact a necessary by-product of freedom[3]. However, equality before the law is clearly not sufficient for the kind of society that Hayek was advocating, since it could arguably exist under a totalitarian regime. It must exist as part of the rule of law, or a meta-legal doctrine or political ideal that puts limitations on what laws ought to be.[4] The Functions of Liberty Dicey’s concept of rule or law has been criticised mainly on the ground of his notion of equality before law which according to him, negatives the existence of administrative law. Dicey’s fear was that a mere declaration of rights in a document will not provide any security against their being suspended or taken away by an executive or legislative action. In order to secure the rights with great strength their existence is to be affirmed through the decisions of the court. The basic assumption of the rule of law is the absence of arbitrary power on the part of the government. According to him, its primary meaning is that everything must be done according to law. Elaborating the meaning Dicey observed not only that no man is above the law but that every man whatever be his rank or condition, is subject to the ordinary law of his realm amenable to the jurisdiction of the ordinary tribunals. Applied to the powers of government, this requires that every government authority which does act which otherwise would be wrong such as taking a man’s land or which infringes a man’s liberty must be able to justify its action as authorised by law. Where they do not conform, they will be declared void under Article 13 and other relevant articles of the Constitution. Image Source: timeonhands.files.wordpress.com If you are the original writer of this essay and no longer wish to have the essay published on the LawTeacher website then please click on the link below to request removal: In our system, arbitrary power is supposedly absent. This is not necessarily the case when considering the laws we maintain on terrorism. The state has exercised its power to apply different laws to suspected terrorists than to other suspected criminals The dilemma of the “tipton three" where three Britons were ‘sent to Guantánamo Bay as suspected terrorists’, then ‘released without charge’ illustrates a prime example. The case of Congreave v The Home Office [19 ] The rule of law suggests that one should be “innocent until proven guilty" which was not respected in this instance. Diceys third principle is the most secure of all. examine the case of R v Horseferry Road Magistrates’ Court [15 ] where a wanted man was illegally abducted, flown back to the UK and put on trial, denied appeal at first but then overturned. The significance of this case is that after being wronged by the authorities, due to the remedy provided by the common law system the man was protected from misuse of power. This is crucial in determining the effectiveness of the rule of law because the its morals were upheld even against black and white letter law. This is similar to Entick v Carrington [16 ] where the Enticks house was trespassed into without a legal warrant. The fact that the ordinary citizen won the case considering his governmental opposition outlines that it is possible for the rule of law to succeed in protection of the citizen from misuse of power A significant area regarding the rule of law protecting a citizen against acts of parliament is the offense of rape. According to the Sexual Offences Act 2003 [20 ] a person ‘commits an offence if he intentionally penetrates the vagina, anus or mouth of another person, with his penis’ [21 ]. The rule of law implies that you must be in breach of the law to be punished. Jane McKenna is an example of a citizen who was failed by the rule of law as she was raped with the result being the accused acquitted of the charges. Mckenna stated ‘It is something that has taken away my dignity’ [22 ]. One could argue in this case that Raz’s interpretation of the rule of law as a political concept would have better suited The underlying theory of the rule of law is that it helps entrench the fundamental rights of the ordinary citizen in common law. The creation of the Human Rights Act was built upon this and has, since its acceptance in the year 2000, given further protection to the citizen against misuse of power. In the United Kingdom, the concept of equality is, in theory, manifested within the constitution. However one cannot neglect the existence of exceptions to such a concept when considering prerogative powers and certain legal immunities and power for select people in certain positions. Such examples include the police, customs officers or public health inspectors. Whether forcibly entering private premises to inspect or taking possession of someone’s property; even if legal by statute; indicates that equality in law is non-existent. Additionally one can note the legal immunities enjoyed by an ambassador or diplomats where they are posted. To elaborate even further, children aged ten and under are immune to conviction of criminal offense, even though there is the rare possibility that they could potentially commit a crime of any scale. The overarching point being that if there is true equality in the law stems from the rule of law, there should not be exceptions that protect some but not all citizens.
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