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.
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9. Law and Adjudication
J. E. Penner and E. Melissaris
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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.
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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.
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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.
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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.
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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.
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3. The Legislative Supremacy of the UK Parliament
This chapter examines the constitutional principle of parliamentary supremacy (which can also be called parliamentary sovereignty). The principle asserts that Acts of the UK Parliament are the highest form of law and prevents the judiciary questioning the validity of primary legislation (for example, that it contradicts another constitutional principle or infringes a fundamental right or freedom). Parliamentary supremacy is supported by political constitutionalists (who think that political control of legislation is more democratic than judicial power to override the will of the majority of MPs) but regarded with scepticism by legal constitutionalists (who would prefer judges to have constitutional power to adjudicate on legislation passed by Parliament, a power judges have in many other constitutional systems). The discussions then turn to parliamentary supremacy as a set of rules; the source of parliamentary supremacy; whether an Act of Parliament can bind future Parliaments; the rules on ‘implied repeal’; and the future of parliamentary supremacy.
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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.
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Ridge v Baldwin [1964] AC 40, House of Lords
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Ridge v Baldwin [1964] AC 40, House of Lords. This case considered whether the process by which a Chief Constable was sacked amounted to procedural unfairness and breached the rules of natural justice. The document also includes supporting commentary and questions from author Thomas Webb.
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Burmah Oil Company v Lord Advocate [1965] AC 75, House of Lords
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Burmah Oil Company v Lord Advocate [1965] AC 75, House of Lords. This case, read together with the War Damage Act 1965, outlines the capacity of Parliament to enact retroactive legislation. The case note discusses this in the context of the rule of law and parliamentary sovereignty. The document also includes supporting commentary and questions from author Thomas Webb.
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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.
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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.
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R v Lord Chancellor, ex parte Witham [1998] QB 575, Queen’s Bench Divisional 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 v Lord Chancellor, ex parte Witham [1998] QB 575, High Court (Queen’s Bench Division). This case concerns the constitutionality of fees payable to access court processes where the applicant’s limited financial means render them unable to pay those fees. More generally it concerns the capacity of the common law to provide rights protections, notwithstanding the Human Rights Act 1998. The document also includes supporting commentary and questions from author Thomas Webb.
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R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, House of Lords
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, House of Lords. In this case, the House of Lords considered whether the Secretary of State could use the prerogative power to set up an alternative compensation scheme to that laid down in statute. It raises questions as regards the limits of the prerogative power, and the separation of powers in the United Kingdom’s constitution. The document also includes supporting commentary and questions from author Thomas Webb.
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R (on the application of Evans) and another v Attorney General [2015] UKSC 21, 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 Evans and another) v Attorney General [2015] UKSC 21, Supreme Court. This case concerns whether Parliament can have intended for a statutory provision to allow a member of the executive to overturn the decision of a court without good, clearly articulated reasons (Lord Mance), or contrary to constitutional principle (Lord Neuberger). The document also includes supporting commentary and questions from author Thomas Webb.
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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.
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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.
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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.
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1. The Rule of Law
Jeffrey Jowell
Dicey believed that discretionary power offended the Rule of Law as it would inevitably lead to arbitrary decisions. His critics pointed out that in the modern state discretion is necessary to carry out a variety of welfare and regulatory tasks. The Rule of Law contains four central features which cohere and overlap: legality, certainty, equality and access to justice and rights. These are not only formal values but also substantive. The Rule of Law is a principle of institutional morality inherent in any constitutional democracy. In a country without a written constitution it constrains the way power is exercised. It is enforced and elaborated through judicial review but also serves as a critical focus for public debate. Although the Rule of Law is not the only requirement of a constitutional democracy, it is of great practical significance in promoting fair decisions, restraining the abuse of power, encouraging investment, and in furthering empowerment and respect for equal human dignity.
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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.
