1-20 of 120 Results

  • Keyword: rule of law x
Clear all

Chapter

Cover Public Law

4. The Rule of Law  

This chapter explains ‘the rule of law’. It first looks at the controversy over how to define the principle. Some experts argue that it should be ‘content-free’, dealing only with the form of law and the procedures by which law is made. Others favour a ‘content-rich’ meaning, so that the substance of laws should have to comply with fundamental rights. The chapter then examines the practical protection of the rule of law. In Britain, all three of the major branches of the state have functions in the development and application of rule of law principles. Judges use various approaches to protect the rule of law when adjudicating on cases. Parliament can enact legislation designed to safeguard the rule of law, though the principle of parliamentary supremacy means that legislation passed by Parliament that infringes the rule of law is not challengeable in the courts. Within government, various office-holders are responsible for ensuring respect for the rule of law.

Chapter

Cover Public Law

4. The Rule of Law  

This chapter explains ‘the rule of law’. It first presents a definition of the rule of law followed by a discussion of the practical protection of the rule of law. In Britain, all three of the major branches of the state — the judiciary, Parliament, and government (especially through the office of Lord Chancellor) — have functions in the development and application of rule of law principles.

Chapter

Cover Constitutional and Administrative Law

3. Rule of law  

This chapter begins with a discussion of the meaning of the rule of law, one of the fundamental doctrines or principles of the UK constitution. The concept is by no means straightforward, and opinions vary as to the principles or values which underpin the doctrine. The chapter distinguishes between formal and substantive meanings of the rule of law. It discusses principles encompassed by the rule of law. These include that laws should be prospective, laws should be open and clear, and that there should be natural justice, access to the courts, and equality before the law. The chapter concludes with an assessment of the contemporary significance of the rule of law.

Chapter

Cover Essential Cases: Public Law

M v Home Office [1994] 1 AC 377, House of Lords (also known as Re M)  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in M v Home Office [1994] 1 AC 377, House of Lords (also known as Re M). The case considered whether the courts had the power to issue injunctions against government departments and the ministers attached to them, and whether the rule of law required that those departments and ministers could be held in contempt of court for breach of court orders. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

M v Home Office [1994] 1 AC 377, House of Lords (also known as Re M)  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in M v Home Office [1994] 1 AC 377, House of Lords (also known as Re M). The case considered whether the courts had the power to issue injunctions against government departments and the ministers attached to them, and whether the rule of law required that those departments and ministers could be held in contempt of court for breach of court orders. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Smith, Hogan, & Ormerod's Text, Cases, & Materials on Criminal Law

20. Conspiracy  

This chapter examines the ways in which criminal law treats conspiracies. Some of the controversies examined include: whether it is necessary and/or desirable to criminalize conspiracies; the extent to which there can be a conspiracy under the Criminal Law Act 1977 if the parties have only agreed to commit the substantive offence subject to some condition; what must be agreed and who must intend what to happen for a crime of conspiracy; the mens rea of statutory conspiracies; and whether common law conspiracies are so vague as to infringe the rule of law.

Chapter

Cover Cases & Materials on International Law

4. International Law and Domestic Law  

The interaction between international law and domestic (or national or ‘municipal’) law demonstrates the struggle between State sovereignty and the international legal order. While the international legal order seeks to organise international society in accordance with the general interests of the international community, State sovereignty can be used to protect a State against the intervention of international law into its national legal system. This chapter discusses theories about the relations between international law and national law; national law on the international plane; international law on the national plane; and examples of international law on the national plane.

Chapter

Cover Public Law

3. The rule of law  

This chapter starts by defining the rule of law, explaining its importance, and placing its origins in Ancient Greece and the writings of Aristotle. Following a brief consideration of how the principle has developed since that time, it discusses the writing of Dicey, whose seminal text, An Introduction to the Study of the Law of the Constitution (1885), explored the meaning of the rule of law and its place in the UK Constitution. The chapter then considers broader theories of the rule of law, dividing these into those that support what are known as ‘formal conceptions’ of the rule of law, and ‘substantive conceptions’ of the rule of law. Finally, it explores the way in which the rule of law can be said to apply in the UK Constitution, both historically and in terms of modern-day authorities.

Chapter

Cover Essential Cases: EU Law

Commission v Poland (Case C-619/18), EU:C:2019:531, [2008] ECR I-6351, 24 June 2019  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Commission v Poland (Case C-619/18), EU:C:2019:531, [2008] ECR I-6351, 24 June 2019. The document also includes supporting commentary from author Noreen O'Meara.

Chapter

Cover Essential Cases: Public Law

Case of Proclamations [1610] 77 ER 1352, 12 Co Rep 74, King’s Bench  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Case of Proclamations [1610] 77 ER 1352 12 Co Rep 74, King’s Bench. This classic public law case concerned whether the King could rule by proclamation, or whether he was required to rule through Parliament. It provides one of the core foundations of the law limiting the scope of the royal prerogative today. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: EU Law

Commission v Poland (Case C-619/18), EU:C:2019:531, [2008] ECR I-6351, 24 June 2019  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Commission v Poland (Case C-619/18), EU:C:2019:531, [2008] ECR I-6351, 24 June 2019. The document also includes supporting commentary from author Noreen O’Meara.

Chapter

Cover Essential Cases: Public Law

Case of Proclamations [1610] 77 ER 1352, 12 Co Rep 74, King’s Bench  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Case of Proclamations [1610] 77 ER 1352 12 Co Rep 74, King’s Bench. This classic public law case concerned whether the King could rule by proclamation, or whether he was required to rule through Parliament. It provides one of the core foundations of the law limiting the scope of the royal prerogative today. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Understanding Jurisprudence

1. What’s it all about?  

This introductory chapter sets out the book’s scope and primary goals, and outlines some useful works on jurisprudence recommended by instructors in American law schools. It explains the central concerns of the subjects, distinguishing between descriptive legal theory, normative legal theory, and critical legal theory, and describes Lon Fuller’s entertaining hypothetical ‘Case of the Speluncean Explorers’, a popular launching pad for the comprehension of legal ideas. The important concept of the rule of law is discussed and analysed. There is an extended account of the controversial question of whether judicial review is undemocratic. The chapter concludes with an explanation of the point of legal theory.

Chapter

Cover McCoubrey & White's Textbook on Jurisprudence

9. Law and Adjudication  

J. E. Penner and E. Melissaris

This chapter explores one of the central features of law, adjudication, and the theories attention to it has generated. It is organised as follows. Section 1 deals with American legal realism and its sceptical challenge to the idea that judges decide cases by applying determinate legal rules. Section 2 considers legal interpretivism, a theory of law originating in the work of Dworkin, and which began its life as a way of better accounting for the nature of legal argument and judicial decision-making. Finally, the chapter looks at the rule of law and the recent claim by Waldron that the values underlying adjudication deserve a more prominent place in our understanding of the value of law.

Chapter

Cover The Changing Constitution

12. The Relationship between Parliament, the Executive and the Judiciary  

Alison L. Young

When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.

Chapter

Cover Constitutional and Administrative Law

11. Judge-made law  

This chapter considers a further source of the UK constitution: the law that is made by the judicial branch of government as a result of the cases heard by the courts. Today it is widely accepted that judge-made law is a reality. It takes two main forms: the development of the common law and the interpretation of statutes. The two main approaches of the courts to the interpretation of Acts of Parliament—the literal approach and the purposive approach—are discussed. In addition, the interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998 is also reviewed.

Chapter

Cover Cases and Materials on Constitutional and Administrative Law

3. The Rule of Law  

This chapter discusses the constitutional principle of the rule of law. First the concept of the rule of law is introduced, including discussion and criticisms of Dicey’s understanding of the principle. The difference between formal and substantive understandings of the rule of law is explored, then the chapter examines the rule of law as a broad political doctrine requiring law to be clear and prospective. Finally, the chapter uses in depth analysis of case law to explain the idea of government according to law in the UK: it examines the need for legal authority for official acts, the principle of legality, and the rule of law as a substantive constitutional principle.

Chapter

Cover Essential Cases: Public Law

R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, Supreme Court  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, Supreme Court. This case revisited the legality of ouster clauses discussed in Anisminic ([1969] 2 AC 147) in the context of the reviewability of decisions made by the Investigatory Powers Tribunal. The note also discusses the implications of the Independent Review of Administrative Law (IRAL) (2021) and the government’s response to the review, as regards ouster clauses. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, Supreme Court  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, Supreme Court. This case revisited the legality of ouster clauses discussed in Anisminic ([1969] 2 AC 147) in the context of the reviewability of decisions made by the Investigatory Powers Tribunal. The note also discusses the implications of the Independent Review of Administrative Law (IRAL) (2021) and the government’s response to the review, as regards ouster clauses. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover International Human Rights Law

2. Historical background  

This chapter provides an historical sketch of international human rights. It considers some of the divergent views as to the origins of human rights. The chapter traces relevant developments including the emergence of the law of aliens; diplomatic laws; the laws of war; the prohibition on slavery; recognition of minority rights; the establishment of the International Labour Organization; and human rights protection after the Second World War. Such incidences of international cooperation and agreements predate, but have influenced, elements of modern international human rights laws. Indeed, some of these historical agreements, such as the prohibition on slavery and minority rights, form part of contemporary human rights.