QUESTION

Questions: Law

Questions: Law

What is the rule of law?

The rule of law, or the principle of legality, is a fundamental principle of the English legal system. It is relevant to administrative law in that government action must be legally authorized, and thus subject to 'the rule of law' (Inwood, 2008, 85-196).

The traditional definition according to Dicey was based on three premises; the principle of legality, equality of all parties before the law, and the fundamental rights of citizens derived from the common law . This definition has since evolved according to political and social values. Sir Owen Dixon famously remarked that the rule of law was an assumption implicit in the Constitution , and it should be noted that constitutional considerations are inextricably linked to the rule of law, particularly in the separation of powers (Smith,2003 85-228).

The most criticised aspect of the Diceyan definition was the required absence of “wide arbitrary or discretionary powers”. This essentially excludes the operation of administrative law bodies, though the need for such a system, (and the inherent discretionary powers the system entails), has long been recognised. However, Dicey's influence on the interpretation of administrative principles remains apparent. The essence of 'regular law' being administered by 'regular courts,' limiting the exercise of discretionary powers can be seen in the courts limiting the scope of a decision-maker's jurisdiction, which is fundamental to administrative law. It has been suggested that a more accurate description of the rule of law principle today is one incorporating “equality, liberty, and the ultimate control of government by the people (Barr, 2002, 63-258).”

What is a constitution?

The constitution is the basic system of laws of a country, which defines and limits the powers of the ruling body. The Canadian constitution is a written document, which states the rules that construe and interpret the powers of federal and provincial governments, and authenticate the responsibilities and rights of the Canadian citizens. Among these laws are sections 7, 11, 12 which set out rights that protect us in our dealings with the justice system. These specific sections ensure that individuals who are involved in legal proceedings are treated fairly and equally. In three specific cases, the funedamental rights, entrenched in the charter, challenged legislation. In the case of R. v. Morgentaler abortion laws were struck down because they violated the liberty and security of the women. Section 11(b) was used to rightfully dismiss the case of R. v. Askov because the trial was unreasonably delayed. The accused in the case of R. v. Smith was given an excessively cruel punishment, which is inconsistent with section 12 of the charter (Smith,2003 85-228).

A constitution provides the essential framework for orderly government and for relations between people and their government.

Canada's Constitution is not a single document as in the United States. It is made up of acts of the British and Canadian Parliaments, as well as legislation, judicial decisions and agreements between the federal and provincial governments.

It also includes unwritten elements such as British constitutional conventions, established custom, tradition ...