PUBLIC LAW ASSIGNMENT WORD COUNT: 2964 The rule of law plays a big role in the development of the western democratic order. A vague concept of rule of law started evolving more than 2000 years ago, at the time of Aristotle . Later a strong assertion of rule of law was laid down by chief justice Coke, who was dismissed from the bench for asserting the Supremacy of Law above the King. However his views were later accepted by the parliament when it passed the Petition of Rights in 1688, and with the passage of time and rise of territorial states in the 16th century the Law of England manifested it self as a supreme entity.
Since then “the concept of rule of law” has gained different interpretations over the years, especially with political prominence of the bourgeois class, and the increasing popularity of laissez-faire government in the 19h century. Since then this concept has changed over the years. However in the old tradition of any legal – political concept, the theory of rule of law has been distorted, redefined and reinvented, to be bended about and conveniently called upon every time it is politically convenient to do so.
Now with United Kingdom encompassing within itself, the European community law and with the incorporation of the Human rights act, the concept of rule of law as been refined to fit its contemporary needs. Referring to the question, Karl Marx uses the word bourgeois to classify a certain class of society. It is important to fully understand the background of this particular society. In a capitalist country, the rulers own the means of production and employ workers, and later on enjoy the profit of the product sold.
The rulers of this country belong to the bourgeois class. Marx originally aimed to diminish individuality and highly promoted the concept of equality. He has a rather negative outlook on the rule of law and is of the view that it is a mere tool of oppression used by the higher class towards the lower class. This basically suggests that the law governing a particular society serves to protect and mask the interest of those who hold power in the society instead of ensuring equality. Marx also correlates law with economical status.
He says that where there is capitalism, a worker is not rewarded with the full value of his labour as he does not enjoy the final price of the product. When a consumer pays for a particular product, he pays for the price of labour, productions costs and the desired profit. Therefore, when viewed within the Marxist perspective, a worker gets paid for less than what he has produced. Here, it can be observed that Marx investigates the impact of the doctrine of the rule of law in many different ways, taking into account it’s economical, sociological, and legal impacts.
Marxism started from what Karl Marx perceived as struggle between different classes in society. According to Marx, the idea of freedom differs between classes. For example, the idea of freedom of the head of state differs from that of a humble government servant. However, in reality, no one person can deem any interpretation more correct than the other as it is a highly subjective matter. Marx is of the view that individuals produce products which are of importance to them, meaning, individuals tend to prioritise their own well-being, which is, in essence, mere human nature. This justifies his perception on the rule of law.
Hence, Marx perceives the government’s implementing of the law as a means to safeguard their own interests. Disagreeing with the way the rule of law was regulated, Marx set out to bring about a change, a revolution called “socialism”. This new revolution started off as a mere ideology and completely juxtaposed capitalism. Marx believed that in order to bring about the socialist revolution, the working class, would have to discard all prejudices including racism, social standings, and the ingrained perception that administration of the society should only be left to the superiors.
He believed that the society should be organized in such a way that made it possible to run on it’s own, without the help of these so called ‘superiors’. This is because Marx believed that the bourgeois class maintains discrimination throughout the society as a vehicle to uphold division of classes. He further elaborates by reasoning that the bourgeois class does so to maintain a certain power and relevance. Collins agreed with Marx’s perception of law, saying that, “Far from hastening the revolution, the welfare state undermines efforts to create working class solidarity.
By preventing the fullest development of the material degradation of the working class and by providing a limited immunity from the vicissitudes of economic crises, a welfare state delays the formation of class consciousness and thus prevents a revolutionary situation from arising…” Just like other interpretations, Marx’s perception towards the Rule of Law is open to criticisms. He is under the impression that with this doctrine, the government is able to silently exercise the abuse of power. Referring to the question, Marx is of the opinion that the rule of law is inefficient, and rarely, if not at all exercised correctly.
The question is, how true is Marx’s narrow interpretation towards the rule of law? The rule of law in its modern sense owes a great deal to Professor AV Dicey-The Father of modern English constitutional law. In his book, Introduction to the study of the Law of the Constitution, he states the three postulates of the rule of law: 1. “No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.
In this sense, the rulel of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint;” 2. No man is above the law; every man and woman, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals; and” 3. The general principles of the constitution ( as, for example, the right to personal liberty, or the right of public meeting) are, with us, the result of judicial decisions determining the rights of private persons in particular cases brought before the couts.  However before discussing the values and fundamental principles of rule of law it is important to note that the English law does not provide a defined set of fundamental civil or human rights entitled to its citizens, which further enhances the Marxist view towards it. Having said that, it has been argued by many that though Dicey never 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.
According to Dicey, although [rule of law] ‘declare no principle and define no rights… they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty’. Marx fails to realize that the law is of an ever changing and developing nature. There is always room for growth and improvements. Having said this, the accountability with which the rule of law is kept in tact with has developed a considerable amount and successfully served a good amount of protection towards all classes of the society.
It is also essential to realise that whenever the parliament considers necessary it can pass retrospective legislation, nullifying the effect of the judicial decision. This clearly highlights the judicial submission to parliamentary supremacy and imposed limitation of the Judges to uphold the rights. The classic example of this is being Burmah Oil v Lord Advocate (1965). After the House of Lords awarded compensation to be paid for the wartime destruction of oil installations, the government speedily introduced the War damages Act 1965 nullifying decision retrospectively.
Even so, in a more recent case, there was a clear contrasting view regarding the extent of retrospective legislation, in the case of Waddington v Miah (1974), where a similar issue was discussed. This time, the House of Lords used Article 7 of the Human Rights Act 1998 to interpret the Immigration Act 1971 to only have prospective effect. This is a clear evidence of rule of law taking effect, seeing that the judiciary was strong in it’s refusal to be influenced by an arbitrary power.
Another case opposing Marx’s perspective on the rule of law is the case of Council of Civil Service Unions v Minister for the Civil Service (1984) or otherwise more commonly known as the case of GCHQ. Here, the government under Margaret Thatcher made a decision to ban the workers of GCHQ from a trade union membership for national security reasons. This was enforced through an Order in Council, an exercise of the Royal Prerogative. The employees felt that there was injustice, and therefore sought for judicial review. The House of Lords were too meek to have challenged a decision as controversial as this in the past.
However, in this case, the House of Lords brought about a significant change and development in the law by ruling that the executive power can be judicially reviewed even if it comes from a royal prerogative, making it clear that the doctrines of separation of powers and the rule of law, which compliment each other, were exercised. Accountability to the rule of law, aims to limit the government’s powers and at the same time provide for “check and balance”. There are several ways as to how different branches of the state are accounted for. They include ministerial question time, judicial review and more.
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 given to the executive, and it exercises powers beyond its legal jurisdiction. The simple proposition that a public authority may not act outside its powers forms the formalistic basis of administrative law. With in it lies the core principle of Ultra Vires. Any administrative act which is Ultra Vires is void in law. This was first put to practise by putting a constraint on the Crown’s powers, with the passing of The Bill of Rights Act 1689.
It provides that the monarchy is subject to law, and ensures that the Crown governs through the Parliament, instead of mere Proclamations as they did before. Some of it’s other provisions include the granting of freedom of speech in the Parliament, the prohibition of royal interference with the law and the inability of the Crown to interfere in matters pertaining to taxes. In common law, the precedent was set in the case of Entick v Carrington. It was decided that there should be no interference in private affairs unless there are search powers granted by the law.
These instances both show the second postulate of law being observed, that is , that no man is above the law, and that everyone is equal before it. Next, in observing the third postulate of the law, a great deal of attention is shed onto individual rights, and there have been numerous occasions showing that the courts had done so. The case of Congreve v Home Office (1976), shows the extent in which the executive can go with the powers given by Parliament. The Home Secretary had the statutory power to invalidate all television licences.
Lord Denning MR held ‘when the licensee has done nothing wrong at all, I do not think the Minister can lawfully revoke the licence… for no good reason, the courts can set aside the revocation and restore the licence. It would be a misuse of the power given on him by Parliament’. Furthermorem while it took a Civil War to abolish slavery in the USA, it took a mere court case in England to accomplish the same. In the case of Somersett v Steuart (1777) , the freedom of and American slave was in question together with the question of whether or not English Law still supported slavery.
Although Lord Mansfield did not clear the issues regarding slavery immediately, his decision contributed to the freedom of the aforementioned American slave and sparked the awareness pertaining to slavery in England and internationally. Therefore, it can be seen here that freedom and individual rights was a main concern, even at that time, before the existence of the Human Rights Act 1998. It is too soon however, to fully comment on the impact of Human Rights Act 1998 on the rule of law, but with cases like A v Home Secretary (No 2) (2005), it is quite safe to say that the act has a positive development towards the rule of law.
In the aforementioned case, the Law Lords held that evidence obtained by means of torture committed abroad by foreign agents is inadmissible in special immigration proceedings. However, it is inevitable that the courts will have to submit to the Parliament’s Supremacy at times, but Lord Steyn had interpreted Section 3 of the Human Rights Act 1998 in the case of R v A (2001) in a way that legislation is given a strained meaning in order to comply with the Human Rights Act 1998.
This basically means that the court may not be able to go against the laws passed by the Parliament, but the courts, may, however, interpret the law in such a way which favours the Human Rights Act 1998. Having observed all three postulates of the rule of law, it is rather difficult to view it in such negativity the way Marx has. Nonetheless, it is important to analyse it in a wider perspective, by first, looking at it at an international point of view. Not all countries were as open to the doctrine of the rule of law as England was. In raditional Oriental society, the Western preference for law was of a very alien conviction. For example, in relation to traditional Chinese society, David and Brierly write : “ For the Chinese, legislation was not the normal means of guaranteeing a harmonious and smooth-working society, Laws , abstract in nature, could not take into account the infinite variety of possible situations. Their strict application was apt to affect man’s innate sense of justice. To enact laws was therefore considered a bad policy by traditional Chinese doctrine.  While some countries are staunch believers of their traditions, it must be considered that if the rule of law implies more than mere regulation by the law and goes to the extent of helping to diminish elevating socio-economical problems, it is of utmost important to conform to the rule of law. This approach was adopted by the International Commission of Jurists which was included in the New Delhi Declaration of 1959, alongside their existing traditional civil and political rights. Not only are there contracting views between Eastern and Western countries, but conflicting views arise within Western countries as well.
Professer joseph Raz’s perception to the rule of law seem to be inclined towards that of Marx instead of the English point of view provided by A. V Dicey. According to Raz,, the rule of law “ … sayas nothing about how the law is to be made: by tyrants, democratic majorities, or any other way. It says nothing about fundamental rights, about equality or justice. “ Secondly, the rule of law can be viewed as a philosophical doctrine. In ancient Greek and Rome, the rule of law was looked upon with utmost positivity by Socrates, Plato and Aristotle.
They were of the view that men are not supreme and other forces govern and limit them. Socrates was convicted for corrupting young minds and was given the verdict of death. Despite having the opportunity to escape, he refused, submitting fully to the law. In conclusion, the rule of law is a key constitutional component. An independent judiciary, independent constitutional review, and the notion of the supremacy of law all work together to ensure that the aim and spirit of the constitution are complied with in the working of a constitutional government.
Technically Rule of law has been claimed as the most important constitutional principle. Still there have been many instances of breach of Rule of law in the British system, for instance violation of human rights in Northern Ireland, Governments restriction toward the right to freedom of expression (Spy catcher), Retrospective law such as the War Crimes Act 1990, which makes actions unlawful in this country after they were committed.. Unequal access to the law in civil cases. The law like the Ritz is open to everyone” Lord Denning . Wealth buys greater access to the civil law eg libel cases. However a few breaches do not essentially mean the failure of a legal principle. Most legal concepts and doctrines develop over time and is still evolving. At an earlier point it was used to assert the supremacy of the parliament over the king, and with the wake of Liberalism it made a progression towards civil rights. And with the on set of the Human Rights Act, we are moving towards a phase of individualism.
Finally to quote Lord Lester “As the impact of Human rights Act comes to be understood , British Judges will increasingly be called upon to act as constitutional judges when interpreting legislation and developing common law… They will have to move from their earlier relatively sheltered position as lions under the throne of the Sovereign Queen in the parliament to become a co-ordinate branch, separate and independent, but working in partner ship with the other two branches of the government”.
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 ) . ———————-  Collins , 1982, pp 126-127  Dicey, 1885, pp 188, 193, 195, respectively. And see Craig , 1990.  AC 75,1964 2 All ER  2 All ER 377  3 All ER 935  QB 629 122  UKHL 71  UKHL 25  Hilaire Barnett , Constitutional & Administrative Law , Seventh Edition , (Routledge-Cavendish, 2009)  See Raz, 1979, p 210. Smith and Brazier 1998
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