English Law/The Rule of Law

Introduction

Put simply, the Rule of Law is the idea that a society should function according to a system of rules. Along with Parliamentary Sovereignty, it is one of the foundational pillars of the UK constitution.

The phrase 'rule of law' was popularised by the jurist and constitutional theoretician A. V. Dicey in the nineteenth century, which was a period when states around the world were grappling with how to balance industrialisation and increasingly urban populations with the need for effective and efficient systems of governance. The impact of European colonialism was also being felt, with many questioning the limits of state power and the authority that the state had to interfere with the rights and property of the individual.

Dicey's Three Elements of the Rule of Law

In Dicey's Introduction to the Study of the Constitution (1885), the author sets out three elements which make the Rule of Law the basis of the UK's unwritten constitution.

No Arbitrary Law

In Dicey's view, there could be no punishment for an act not forbidden by the law enforced by the ordinary courts of the land. Therefore, there can be no punishment issued by the executive or legislature. Punishment is reserved for the courts after a finding of guilt.

This is a restriction on the ability of the executive to arbitrarily detain and punish those who it sees as a threat, a common feature of authoritarian regimes.

Equality Before the Law

In his second element of the rule of law, Dicey set out the idea that nobody is exempt from the law, regardless of rank or status. The citizens of the state are subject to the same laws as those who run it.

The Ordinary Law of the Land is the Constitution

Rather than a written constitution setting out the rights of citizens, Dicey's view that, in the UK at least, these rights are better protected through ordinary law. Where a risk of a breach of a fundamental right is present, it is the job of the ordinary law of the land to guard against it rather than a constitutional document. This was seen as a more effective form of protecting rights, as courts can enforce the law in specific areas much more powerfully than they can apply abstract constitutional principles.