The Rule of Law

The Rule of Law

Introduction

The rule of law in its modern sense owes a great deal to Professor AV Dicey-The Father of modern English constitutional law. Introduction to the study of the Law of the Constitution was first published in 1885 and since then has retained its position as a certifiable authority on the Principles of constitutional law. However before discussing the essential value structures and fundamental principles of rule of law it is interesting to note that the English law does not list down precisely a defined set of fundamental civil or human rights entitled to its citizens. In traditional English legal term, the concept of popular rights has been eclipsed by the concept of parliamentary sovereignty. It has been argued by many that though Dicey never explicitly stated the existence of human right, he counter balances this lacuna by projecting judicial decision as the yard stick of determining the rights of private individuals. Although [rule of law] 'declare no principle and define no rights they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty

Analysis

Accountability to the rule of law, in its most basic form aims at structuring and placing certain limits on governmental action. Time-tested constitutional mandates of separation of powers, checks and balances, independent constitutional review and an independent judiciary provide the institutional basis for judges to find and articulate laws independently. The most disputed violation relating to rule of law occurs where in state action conflicts directly with individual rights. Especially when a, wide range of discretionary powers are conferred on the executive, and it exercises powers not under its legal jurisdiction. The simple proposition that a public authority may not act outside its powers forms the formalistic basis of administrative law.

Parallel to the decision in Entick v Carrington, the House of Lords held that the Home Secretary was in contempt of the court on the account of failure to respect a court order concerning a deportee, in M v Home Office the House of Lords further held that the Secretary of State was not entitle to claim crown immunity. An injunction was granted against the secretary of State in his official capacity and the department which he was responsible was held in contempt .This legal precedent clearly illustrates the role of judicial accountability towards the protection of individual rights and placing checks and balances on the executive. However an apparent contradiction arose when Liversidge v Anderson was decided. The case challenged the legality of detention authorised under the order by the Home secretary. The House of Lords going against the principle established in Entick v Carrington held that at times of emergency the courts did not possess the judicial validity to review the actions of home secretary. Such conflicting judgements do not certify the existence of judicial protection against executive actions. However it should also be noted that the HRA Act 1998, incorporated the European Convention on human rights into domestic law which now enables citizen ...