The rule of law has had a significant impact on the development of the western democratic order, evolving over a span of more than 2000 years. Its origins can be traced back to Aristotle’s era and were later highlighted by Chief Justice Coke, who faced dismissal for prioritizing the Supremacy of Law above the King. Nevertheless, Parliament eventually adopted his perspectives and passed the Petition of Rights in 1688. As territorial states emerged during the 16th century, English law gained growing acknowledgement as the ultimate authority.
Throughout time, there have been different interpretations of the rule of law. This was especially notable in the 19th century when the bourgeoisie emerged and laissez-faire government became more common. The concept has changed over time, but like other legal-political ideas from the past, it has been altered, redefined, and exploited to serve political agendas.
Now, with the United Kingdom including the European community law and incorporating the Human Rights Act, the notion of the rule of law has been adapted to meet modern requirements. Karl Marx referred to the term bourgeois to categorize a specific societal class. It is crucial to comprehend the historical context of this society. In a capitalist nation, the rulers possess the means of production and hire workers, ultimately benefiting from the sales profits.
The rulers of this country are part of the bourgeois class. Marx’s original goal was to reduce individuality and strongly promote equality. He holds a pessimistic view regarding the role of law, seeing it as a means of oppression employed by the upper class against the lower class. This suggests that laws in society primarily function to safeguard and mask the interests of those in power, rather than guaranteeing equality. Additionally, Marx establishes a correlation between law and economic status.
According to Marx, under capitalism, the worker’s labor is not fully compensated as they do not receive the complete price of the product. The consumer pays for labor, production costs, and desired profit. This leads to the worker receiving less payment than their actual value of production. Additionally, Marx examines how the rule of law impacts economics, sociology, and legal affairs.
Marxism originated from Karl Marx’s conviction in the clash between distinct social classes. According to Marx, every class possesses a specific viewpoint on freedom. For example, a country’s leader perceives freedom differently than a modest government employee. Nevertheless, ascertaining the accurate understanding of freedom is subjective by its very nature. Marx argues that individuals create commodities that possess personal importance to them, emphasizing their innate inclination to prioritize their own well-being. This provides validation for his belief in the importance of abiding by legal regulations.
Marx argued that the government’s utilization of the law serves to safeguard their own interests. He criticized the management of the rule of law and aimed to establish a new revolution called “socialism”. Initially, this revolution was solely an ideology that directly opposed capitalism. Marx asserted that for the socialist revolution to transpire, the working class must relinquish all prejudices, such as racism and social hierarchy, and confront the notion that only superior individuals should govern society.
Marx argued that society should be organized to operate autonomously, without dependence on ‘superiors’. He believed that the bourgeois class uses discrimination to preserve class divisions and maintain power. Collins agrees with Marx’s perspective on law, asserting that the welfare state weakens working class unity instead of fostering revolutionary advancement.
According to Marx, the welfare state hinders the emergence of class consciousness and obstructs a revolutionary scenario by safeguarding the working class against economic crises and material decline. Nonetheless, he critiques the Rule of Law for enabling governmental abuse of power. Marx deems the rule of law as ineffective and seldom implemented accurately.
Marx’s understanding of the rule of law and its accuracy is a topic of discussion. The concept, as it exists today, has been greatly influenced by Professor AV Dicey, known as the Father of modern English constitutional law. In his book titled Introduction to the study of the Law of the Constitution, Dicey outlines three principles that outline the rule of law:
- “No individual can be punished or face financial consequences unless they have clearly violated a law that has been established through proper legal procedures in their country’s courts.”
The rule of law refers to the distinction between governmental systems that grant those in power broad, arbitrary, or discretionary powers of restriction. Conversely, it upholds the notion that no one is exempt from the law and that every person, regardless of their status, is subject to the regular laws of the territory and accountable to standard courts. The foundational principles established through court rulings shape constitutional rights such as personal freedom or public assembly for individuals involved in specific legal cases. It should be noted that English law does not provide a predefined list of essential civil or human rights for its citizens—a perspective aligned with Marxism. However, some argue that Dicey addresses this deficiency by presenting judicial decisions as a means to determine the rights of private individuals.
Dicey argues that although the rule of law does not have clear principles and rights, it remains crucial for safeguarding personal freedom. In contrast, Marx overlooks the continuous evolution and potential enhancement of the law. Nevertheless, it is essential to acknowledge that the rule of law has considerably advanced in terms of accountability over time, ensuring protection for every individual in society.
It is crucial to comprehend that the parliament holds the authority to enact laws that apply retroactively, overriding rulings made by judges. This showcases how the judiciary acknowledges and adheres to parliamentary supremacy, as well as the constraints imposed on judges in safeguarding rights. A prime example of this situation is embodied in the Burmah Oil v Lord Advocate (1965) case, where the House of Lords awarded compensation for wartime destruction of oil facilities. Nevertheless, shortly after, the government introduced the War damages Act 1965 which essentially rendered that decision null and void retrospectively.
Even in a more recent case, there was a distinct difference of opinion on the extent of retrospective legislation. This occurred in the case of Waddington v Miah (1974)[4], where a similar issue was deliberated. However, this time, the House of Lords employed Article 7 of the Human Rights Act 1998 to construe that the Immigration Act 1971 should only apply moving forward. This serves as a clear demonstration of the rule of law in action, as the judiciary steadfastly resisted being swayed by arbitrary authority.
Contradicting Marx’s viewpoint on the rule of law is the Council of Civil Service Unions v Minister for the Civil Service (1984)[5], known as the GCHQ case. Margaret Thatcher’s government prohibited GCHQ workers from joining a trade union, citing national security concerns. The Order in Council, an exercise of the Royal Prerogative, was used to implement this decision. Employees felt this was unjust and sought judicial review. However, the House of Lords hesitated to challenge such a contentious decision made previously.
Nevertheless, the House of Lords issued a significant decision in this matter, affirming that the judiciary possesses the power to examine executive authority, regardless of its origin from a royal prerogative. This ruling highlighted the significance of both the separation of powers and adherence to legal principles, which function congruently. The notion of being accountable to the rule of law aims to limit government powers while establishing a system of oversight. Different mechanisms exist for holding various branches of the state responsible, including ministerial question time and judicial review.
The violation of the rule of law is most controversial when state action directly conflicts with individual rights. This is particularly true when the executive is given a wide range of discretionary powers and exercises authority beyond its legal jurisdiction. The basic principle of administrative law is that a public authority cannot act outside its powers. At the heart of this principle is the concept of Ultra Vires, which means any administrative act that is Ultra Vires is considered legally void. The Crown’s powers were first restricted with the enactment of The Bill of Rights Act 1689.
The text states that the monarchy is now bound by law and governs through Parliament, rather than using mere Proclamations as they did previously. Other provisions include freedom of speech in Parliament, the prohibition of royal interference with the law, and the Crown’s inability to meddle in tax matters. The case of Entick v Carrington established the precedent in common law that there should be no interference in private affairs unless authorized by law.
Both instances exemplify the adherence to the second postulate of law, which asserts that everyone is subject to the law and equality prevails for all individuals. Moreover, the third postulate of law strongly emphasizes individual rights, and several cases have prioritized this aspect. One noteworthy case illustrating this is Congreve v Home Office (1976)[6], demonstrating the extent of authority exercised by the executive branch as delegated by Parliament. In this case, the Home Secretary had legal authority to revoke all television licenses.
Lord Denning MR stated that a licensee’s license cannot be revoked by the Minister if there is no wrongdoing involved. In cases where the revocation is deemed unjust, the courts have the authority to overturn it and restore the license. Such an act would be considered an abuse of power granted by Parliament to the Minister. In contrast to the United States, which abolished slavery through a Civil War, England achieved a comparable outcome through a straightforward court case. The Somersett v Steuart (1777) case decided both the freedom of an American slave and whether English Law allowed for slavery.
Although the immediate resolution of slavery issues was not achieved, Lord Mansfield’s decision played a role in advancing the freedom of the mentioned American slave and increasing awareness about slavery both in England and internationally. This demonstrates that concerns regarding freedom and individual rights were already significant prior to the establishment of the Human Rights Act 1998. Assessing the complete impact of this act on the rule of law is still premature. Nevertheless, cases like A v Home Secretary (No 2) (2005)[7] suggest that the act has positively influenced the development of the rule of law.
The Law Lords in the mentioned case ruled that evidence gathered through torture carried out by foreign agents abroad cannot be used in special immigration proceedings. Nonetheless, there will be occasions when the courts must abide by the Supremacy of Parliament. However, Lord Steyn interpreted Section 3 of the Human Rights Act 1998 in the R v A (2001)[8] case to give legislation a forced interpretation in order to comply with the Human Rights Act 1998.
The court cannot oppose laws passed by the Parliament, but they can interpret the law to support the Human Rights Act 1998. The rule of law encompasses three postulates and should not be seen in a negative light like Marx suggests. Taking an international perspective, not all countries embraced the concept of the rule of law like England did. In traditional Oriental society, the preference for law was different. For instance, in traditional Chinese society, legislation was not the usual method of ensuring a harmonious society as laws could not accommodate all possible situations. Strictly enforcing laws could also undermine human’s innate sense of justice. Therefore, enacting laws was seen as unfavorable according to traditional Chinese doctrine. Although some countries adhere strongly to their traditions, it is crucial to consider that if the rule of law extends beyond mere regulation and helps reduce socio-economic issues, it is imperative to comply with it.The International Commission of Jurists, as stated in the New Delhi Declaration of 1959, incorporated this approach along with their traditional civil and political rights. Contrasting perspectives emerge not only between Eastern and Western countries but also within Western countries.
Professor Joseph Raz suggests that the rule of law aligns more closely with Marx’s perspective rather than A. V Dicey’s English viewpoint. According to Raz, the rule of law does not specify how laws should be established, whether by tyrants, democratic majorities, or any other means. It also doesn’t encompass fundamental rights, equality, or justice. Additionally, he views the rule of law as a philosophical doctrine highly valued by Socrates, Plato, and Aristotle in ancient Greece and Rome.
Men are not seen as superior and are controlled by external forces. Socrates was condemned for negatively influencing young minds and received the death penalty. Despite having an opportunity to escape, he chose to adhere to the law. Ultimately, the rule of law is crucial in the constitution. The presence of a fair judiciary, independent constitutional review, and legal supremacy ensure that the goals and principles of the constitution are upheld in a constitutional government.
Despite being considered the most crucial constitutional principle, the Rule of Law has been violated multiple times within the British system. These violations encompass human rights abuses in Northern Ireland, government restrictions on freedom of speech (such as in the Spy catcher case), and laws with retroactive effects like the War Crimes Act 1990. Furthermore, inequality exists in accessing legal remedies in civil cases where wealth can offer an advantage, as evident in libel cases. However, these breaches do not necessarily indicate a failure of this legal principle.
The development and evolution of legal concepts and doctrines also pertain to the Rule of Law. Initially, it established parliamentary supremacy over the monarch and subsequently progressed towards safeguarding civil rights with the rise of Liberalism. Currently, with the implementation of the Human Rights Act, we are entering an era that prioritizes individualism.
Finally, British judges will increasingly be required to act as constitutional judges in interpreting legislation and developing common law, according to Lord Lester. He states that as the impact of the Human Rights Act becomes better understood, judges will have to transition from their previous position as subordinate to the Queen and Parliament to become a separate and independent branch of government, working in partnership with the other two branches.
BIBLIOGRAPHY 1. H. Barnett, Constitutional & Administrative Law, (7th edition Routledge-Grant, 2009). 2. R. Singh, Public Law Study Manual, (1st edition Brickfields Asia College Corporation, 2011). 3. K. Marx, F. Engels, The Communist Manifesto Karl Marx and Frederick Engles Collected Works, Vol 6 (ElecBook London1976). 4. K. Marx, The German Ideology, ( Electric Book Company Ltd , 2011 ) . —- [1] Collins , 1982, pp 126-127 [2] Dicey, 1885, pp 188, 193, 195, respectively. And see Craig , 1990. [3] AC 75,1964 2 All ER [4] 2 All ER 377 [5] 3 All ER 935 [6] QB 629 122 [7] UKHL 71 [8] UKHL 25 [9] Hilaire Barnett , Constitutional & Administrative Law , Seventh Edition , (Routledge-Cavendish, 2009) [10] See Raz, 1979, p 210. Smith and Brazier 1998
