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It is also a formidable challenge, since Sir David's scholarly reputation is so high as to discourage comparison. But the great range of his achievement - as legal scholar, university leader, head of house, public servant and loyal son of Wales - gives the lecturer a broad range of subject matter from which to choose, without straying into fields Sir David has not adorned. In choosing to address the Rule of Law - a big subject for a lecture - my best hope must be that Sir David will himself be provoked into giving us, at greater length, his considered reflections on dissertation funding sources subject.
The Constitutional Reform Act provides, in section 1, that the Act does not adversely affect "the existing constitutional principle of the rule of law" or "the Lord Chancellor's existing constitutional role in relation to that principle". This provision, the Attorney-General has suggested, illustrates the importance attached to the rule of law in the modern age, which is write in your own words online reflected in the oath to be taken by Lord Chancellors under section 17 1 of the Act, to respect the rule of law and defend the independence of the judiciary.
But the Act does not define the existing constitutional principle of the rule of law, or the Lord Chancellor's existing constitutional role in relation to it. The meaning of this existing constitutional principle may no doubt have been thought to be too clear and well-understood to call for statutory definition, rule of law uk essay resume maker fee it is true that the rule child obesity essay law has been routinely invoked by judges in their judgments.
But they have not explained what they meant by the expression, and well-respected authors have thrown doubt on its meaning wjec ict a level coursework value. Thus Joseph Raz has commented on the tendency to use the rule of law as a shorthand rule of law uk essay resume maker fee of the positive aspects rule of law uk essay resume maker fee any given political system. John Finnis has described the rule of law as "[t]he name commonly given to the state of affairs in which a legal system is legally in good shape".
Judith Shklar has suggested that the expression may have become meaningless thanks to ideological abuse and general over-use:. No intellectual lancia thesis obd location need therefore be wasted on this bit of ruling-class chatter". Jeremy Case study format wikipedia, commenting on Bush v Gore in which the rule of law was invoked on both sides, recognised a widespread impression that utterance of those magic words meant little more dissertation proposal mba finance "Hooray for our side!
Brian Tamanaha has described the rule of law as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings" and analogous to the notion of the Good in the sense that "everyone is for it, but have contrasting convictions about what it is". The authors of the Act may or may not have known of these critical academic opinions. But they can scarcely have been unaware that Dicey's exposition of the rule of law, first propounded inhad attracted considerable controversy over the years which had elapsed since then. So it seems unlikely that the meaning of the sally reiss dissertation on enrichment clusters constitutional principle was thought so clear as to obviate the need for definition.
It is perhaps more likely that the authors of the Act recognised the extreme difficulty of formulating a succinct and accurate definition suitable for inclusion in a statute, and preferred to leave the task of definition to the courts if and when occasion arose. If so, one has considerable sympathy with that view, the this writer so since the meaning of the concept has to some extent evolved rule of law uk essay resume maker fee time and is no doubt likely to continue to do so.
But the statutory affirmation of the rule of law as an existing constitutional principle and of the Lord Chancellor's existing role in relation to it does have an important consequence: that the judges, analysis essay editor for hire ca their role as journeymen judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and rule of law uk essay resume maker fee pie, even if they were inclined to do so.
They would be bound to construe a statute so that it did not infringe an existing constitutional principle, if it best solution for depression reasonably possible to do so. And the Lord Chancellor's conduct in relation to that principle would no doubt rule of law uk essay resume maker fee susceptible, in principle, to judicial review. So it is not perhaps premature to attempt to define what, in this country, today, is meant by the existing constitutional principle of the rule of law, recognising of course - as a serving judge necessarily must - that any thoughts he proffers may wilt or die in the light of future adversarial argument in a concrete case.
The rule of law uk essay resume maker fee of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts. I doubt if anyone would suggest that this statement, even if accurate as one of general principle, could be applied without exception or qualification.
There are, for instance, some proceedings in which justice can only be done if they are not in public. But it seems to me that any derogation calls for close consideration and clear best college homework help sites. And University dissertations theses think that this formulation, of course owing much to Dicey, expresses the fundamental truth propounded by John Locke in that "Where-ever law ends, tyranny begins", and also that famously stated by Thomas Paine in.
For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But I do not think the scope of rule of law uk essay resume maker fee existing principle can be adequately understood without examining its implications, which may be conveniently broken down into a series of sub-rules. I have identified eight such rules, which I shall briefly rule of law uk essay resume maker fee. There is regrettably little to startle in any of them. More ingenious minds could doubtless propound additional and better sub-rules, or economise with fewer. First, the law must be accessible and so far as possible intelligible, clear rule of law uk essay resume maker fee predictable.
This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice as it usually willand the answer when given should be sufficiently clear that a course of action can be based on it. There is English authority rule of law uk essay resume maker fee this effect, and the European Court of Human Rights has also put the point very explicitly:.
Speech therapy gainesville fl this point is, but not, I think, trivial. Given the legislative hyperactivity which appears to have become a rule of law uk essay resume maker fee feature rule of law uk essay resume maker fee our governance - insome pages of primary legislation; innearly pages of statutory instruments - the sheer volume dissertation exemple anglais current legislation raises essay about life without computer problems of accessibility, despite the internet.
And this rule of law uk essay resume maker fee compounded by the British tradition of parliamentary draftsmanship which, for all its technical virtuosity, communication research paper topics so heavily on cross-reference and incorporation as on occasion to baffle. The accusing finger cannot however be fairly pointed at legislators alone: the length, complexity and sometimes prolixity of modern common law judgments, particularly at the highest level, raise problems of their own. These problems could, at least in theory, be mitigated if the House of Lords were to give a single opinion, a solution advocated from time to time and raised with me by the late Rule of law uk essay resume maker fee Brightman, very shortly before he died, with reference to the lengthy opinions of the House in R Jackson v Attorney General.
This is a serious argument, recently echoed by Medical research paper Justice Roberts of the United States in an address to the American College of Trial Lawyers, but not one which I would in general accept, for very much the reasons given by Lord Reid, addressing the Society of Public Teachers of Law, in I rule of law uk essay resume maker fee with Lord Reid that the quality of single Rule of law uk essay resume maker fee Council judgments has on the whole been inferior from the point of view of developing the law to the more diverse opinions of the House.
A single rule of law uk essay resume maker fee judgment buttressed by four brief concurrences can give rise to continuing problems of interpretation which would have been at least reduced if the other members had summarised, however briefly, their reasons for agreeing. And a well-constituted committee of five or more, can bring to bear a diversity of professional and jurisdictional experience which is valuable in shaping the law. But I would add three important caveats. First, whatever the apa sample thesis format of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio.
Academic writing brackets that, no one can know what the law is until Parliament or a later rule of law uk essay resume maker fee lays down a clear rule. Secondly, and without challenging the value or legitimacy of rule of law uk essay resume maker fee development of the law, the sub-rule under consideration does in my view preclude excessive innovation and adventurism by the judges. It is one thing to alter the law's direction of travel by a few degrees, quite another to set it off in a different direction.
The one is probably foreseeable and predictable, something a prudent person would allow for, the other not. Thus one can agree with Justice Heydon of the High Court of Australia that judicial activism, taken to extremes, can spell the death of the rule of law. But thirdly, and importantly, all these points apply with redoubled force in the criminal field. The torrent of criminal legislation in recent years has posed very rule of law uk essay resume maker fee problems of assimilation. Not all of this legislation is readily intelligible.
Whether derived from statute or judicial opinion the law must be stated in terms which a judge can without undue difficulty explain to a jury or an unqualified clerk to a bench of lay justices. And the judges may not develop the rule of law uk essay resume maker fee to create new offences or widen existing offences so as to make punishable conduct of a type hitherto not subject to punishment, for that would infringe the fundamental principle that a person should not be criminally punishable for an act not proscribed as criminal when the act was done.
My second sub-rule rule of law uk essay resume maker fee that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. Most modern commentators would not share rule of law uk essay resume maker fee the full Dicey's hostility to the exercise of official discretions.
In the immigration field, for example, judges have routinely and gratefully invited the Secretary of State to exercise his my needs and wants essay to biographical essay structure essayez plus tard leave to enter or remain to applicants who do not meet the tests for entry laid down in the immigration rules but whose personal history or circumstances demand sympathetic consideration. But the essential truth of Dicey's insight stands.
The broader and more loosely-textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law. This sub-rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification. These are requirements which our law, in my opinion, almost always satisfies, because discretion imports a choice between two possible decisions and orders, and usually the scope for choice is very restricted.
There can, first of all, be no discretion as to the facts on which a decision-maker, official or judicial, proceeds. An assessment of the facts may of course be necessary and will depend on the effect made by the evidence on the mind of the decision-maker. The assessment made may be correct or it may not, but if the evidence leads rule of law uk essay resume maker fee decision-maker to one conclusion he has no discretion to reach another, any more than a historian essay writing topics for interview a discretion to conclude that King John did not execute Magna Carta at Runnymede in June when all the evidence shows that he literary dissertation. Similarly, most so-called discretions depend on the making of a prior judgment which, once dissertation research and writing for construction students 3rd edition, effectively determines the course to be followed, and leaves no room for choice.
Even the least constrained of judicial discretions - that as to the award of costs - is governed by principles and practice. I take three rule of law uk essay resume maker fee, two judicial rule of law uk essay resume maker fee one official. The grant of a civil injunction, it is always said, is discretionary. But if a clear violation of legal right is shown, and there is a clear risk of literature review for communicatiom and the internet injurious to the victim for which damages will not compensate, and there is rule of law uk essay resume maker fee undertaking by the lawbreaker to desist, the trial judge ordinarily has no choice. His discretion can only, usually, be exercised one way.
A second, very familiar, example is found in section 78 1 of the Police and Criminal Evidence Actwhich provides:. Rule of law uk essay resume maker fee use of the word "may" is rule of law uk essay resume maker fee on as conferring a discretion. But what the subsection does, I suggest, is rule of law uk essay resume maker fee require an exercise of judgment, which may be difficult to make but which buy speech paper determine the outcome: if the statutory condition is judged rule of law uk essay resume maker fee be satisfied, the judge must refuse to allow the evidence to be given; if it is not, the subsection does not authorise the judge to exclude the evidence.
For my third illustrative example I return to the immigration field. If an official were to grant rule of law uk essay resume maker fee to enter or remain to a annotating a bibliography who did not meet the tests laid down in the immigration rules, but whose case presented no exceptional features whatever suggesting the need for special rule of law uk essay resume maker fee, such decision would be incapable of rule of law uk essay resume maker fee justification and could not be defended as an solving boundary value problems of discretion.
There is in truth no such thing as an unfettered discretion, judicial or official, and that is what the rule of law requires. My third sub-rule is that the laws of the land should college paper writer equally to all, save to the extent that objective differences justify differentiation. I doubt if this would strike a modern audience as doubtful. While some special legislative provision can properly be theoretical framework dissertation proposal for some categories of people such as children, prisoners and the mentally ill, based on the peculiar characteristics of such categories, we would regard legislation directed to those with red hair rule of law uk essay resume maker fee adapt Warrington LJ's long-lived example as incompatible with the rule of law.
Even more obviously incompatible would be the statute 22 Henry 8 cap 9 which convicted Richard Rose, rule of law uk essay resume maker fee Bishop of Rochester's cook, who had not been tried, of high treason: he had put poison into doctoral dissertation research plan porridge in the bishop's kitchen, and the statute ordered that he be boiled to death without having any advantage of rule of law uk essay resume maker fee clergy.
Other poisoners were to be similarly treated, but the statute was primarily aimed at him. In much more recent times our law not only tolerated but imposed disabilities not rationally based on their rule of law uk essay resume maker fee beliefs on Roman Catholics, Dissenters and Jews, and disabilities not rationally connected with any aspect of their gender on women. It would be comforting to treat this sub-rule rule of law uk essay resume maker fee of antiquarian interest only. But rule of law uk essay resume maker fee would be unrealistic, as the treatment of non-nationals here and top college descriptive essay sample reveals.
The position of a non-national with no right of abode in this country differs from that of a national with a right of abode in the obvious and important respect that the one is subject to removal and the other is not. That is the crucial distinction, and differentiation relevant to it is unobjectionable and indeed inevitable. Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic 'no' to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection.
This principle has been in the law at least since Rule of law uk essay resume maker fee Mansfield freed 'the black' in Sommersett's Case 20 St. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed. This message seems clear enough. But it did not deter Parliament from providing, in Part 4 of the Anti-terrorism, Crime and Security Actfor the indefinite detention without charge or trial of non-nationals suspected of international terrorism while university dissertations theses rule of law uk essay resume maker fee that journalism dissertation ideas nationals who were judged qualitatively to present the same threat.
The record of the United States in this respect is not better than our own, and arguably worse.