The Supremacy of the Law
Info: 2082 words (8 pages) Essay
Published: 6th Aug 2019
Law, as it is the command of the Sovereign which means that law has its source in sovereign authority, law is accompanied by sanctions, and the command to be a law should compel a course of conduct. Being a command the law must flow from a determinate person or group of persons with the threat of displeasure if it is not obeyed. Sovereignty is, however, only a part of the state. So, in ultimate sense, law emanates from the state. Thus the term Law is sued to denote rules of conduct emanated from and enforced by the state. People living in an organized society have to follow certain common rules, otherwise peaceful living is impossible. It is the function of the State to enforce these rules.
Definition of Law by Various Personalities
“Law is the body of principles recognized and applied by the State in the administration of justice.’
“Law is that portion of the established habit and though of mankind which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of the government” This definition is practically the same as that of Holland.
Supremacy of the law
Supremacy of the law is a basic model in the western democratic order. This rule requires citizens and governments to be matter to known and standing law. This also calls for generality in the law. This principle of supremacy of law is a further establishment of this principle of equality previous to the law, means that laws should not be prepared in respect of particular individuals. As dicey postulated, the law presupposes the absence of broad flexible authority in the rules, so that they cannot create their own laws but most govern according to the establish laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.
The idea of the supremacy of law requires a definition of law (to which the above principles may prerogative decree. A failure to maintain the formal differences between these things must lead to a conception of law as nothing more than authorization for power, rather than the guarantee of liberty, equally to all.
The rule of law ensures that individuals have a secure area of autonomy and have settled expectations by having their rights and duties pre-established and enforced by law.
It is essential to the supremacy and effectiveness of Community law that the law should be capable of being enforced in national courts, as a matter both of principle and of practice. Explain the rights of an individual or a company to rely on a provision of Community law in their national courts. The effectiveness of a system of law depends on the extent to which individuals can rely on its provisions. The ability of an individual to rely on the provisions of Community law has often being called into question, and on this basis the effectiveness and supremacy of EC law has often been undermined.
Historically, the laws of parliament have been supreme, the final statement of the will of the people and not subject to review be another body. in order to establish the rule of the law, the foremost important thing is to assert the law supremacy over executive power and people actions, and to make sure that every citizen understands not only the necessity and desirability of observing the law, but also understands that without this there cannot be normal development our the society and third is the establishment of the effective court system.
BRITAIN LEGAL SYSTEM
The Britain unwritten constitutional constitution rests on three pillars that are:
The rule of law
Separation of powers
In order to understand the Britain Law, it is necessary to have some knowledge & understanding of these concepts and particularly the rule of law.
Parliamentary sovereignty refers to the legislative supremacy of the United Kingdom Parliament. It means that there is no limit of the house of commons on the capacity, the crown & the House of Lords to enact laws in the UK. The principal source of UK law is the Parliament.
Separation of powers
It refers to the idea that there exists some degree of freedom in the exercise of the different functions of government of UK. Conservatively, these functions are described as the executive, legislative, and the judicial functions of government of UK and can be observed most clearly in the work of Hose of Lords, the Cabinet, Members of Parliament, and the Judges (the judiciary). For the healthy operation of democratic government, this separation is understood as, in theory; this system provides a check and balance that helps to prevent too much state power being given in the hands of one group. The new supreme court will visibly and practically strengthen the constitutional separation between the legislature and constitutional, once in operation. This can be done by taking judges out of the House of Lords. Still there is a debate is going on whether, in practice too much power resides in the hands of the executive.
RULE OF LAW
The rule of law is essential in any society where human rights are to be protected. It acts as a safeguard for human rights firstly by guaranteeing them legally and secondly providing a means for redressal where violations occur. Punishments awarded in such cases also serve a as deterrent against further abuse.
The rule of law requires a respect for the processes by which laws and decisions are made. In the draft manifesto for the rule of law with which JUSTICE launched its 50th anniversary year, we identified seven principles to be upheld:
adherence to the rule of law as a cornerstone of domestic and foreign policy;
a right of equality for all before and under the law;
a right of access to justice for all;
protection for due process and the right to a fair trial;
independence of the judiciary and legal profession;
greater powers of Parliamentary scrutiny;
greater protection for the rights of individuals within the European Union.
The main distinction among “rule of law” and “rule by law” is important. Under the rule of law, no one is superior to law, including the government as well. Under the rule by law, law is a tool of the government, and the government is superior by law. The foundation of “rule of law” is an independent legal order. In rule of law, the power of law does not depend so much on law’s influential capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and divides from other normative makeup such as politics and religion. As an independent legal order, rule of law has at least three meanings.
First, it is a regulator of government power. Second equality before law & last procedural and formal justice.
Regulation of Government Power
Bing a power regulator, it has two main roles: it restrictions government arbitrariness and power abuse, as well as it enables the government more balanced and its policies more intelligent. Rule of law places limits on the government discretionary power that includes the power to make changes in laws. rule of law requires the supremacy of law if we are to limit government caprice, as opposed to a political party or the supremacy of the government. The absolute predominance or supremacy of regular law as divergent to the control of arbitrary power, and excludes the prerogative, existence of arbitrariness, , or a wide discretionary authority with any government.
Second, the government has to follow legal procedures if it is to be restricted in its exercise of discretion that include, pre-announced and pre-fixed. The government is bound by rules fixed and announce under rule of law. Taking the example, under criminal and constitutional law, there is a ban on “ex post facto” laws, which means that is no one should be given punished for a offense that is not previously defined in law. We can say that, the government cannot define a new crime law and apply the new definition.
Equality before Law
Equality before law is the second meaning of rule of law. According to this meaning no man is above the law, irrespective of the rank of the person or circumstances. in the Europe liberal democratic countries this principle of rule of law was not universally true. The concept of legal equality had been pressed to its limit by 1915 in England. However till now, in all liberal democratic countries, the concept of equality before the law is now a universally standard principle.
Procedural and Formal Justice
First we define formality. It refers to an attribute that the criteria law finding and lawmaking and law finding essential to the law system. According to this we mean that all procedures, rules, and decisions can be removed from the legal system. A legal system that stresses on substantive qualities of law finding and lawmaking uses factors, such as emotional. religious, ethical, or political factors, to evaluate law cases. According to the western legal tradition, a formally rational legal system, also results in justice that the people desire. It is called formal or procedural justice, which brings the method of achieving justice by over and over again applying procedure and rules and that shape the order of a legal system. Procedural or Formal justice consists of several principles that are: the legal system must includes a set of procedural rules and set of decision that are fair. Second, these rules procedure and procedure must also be pre-announced and pre-fixed. Third, these procedural rules and decisional rules must be clearly applied. Last, these procedural rules and decisional must be constantly applied. In case where these four conditions are fulfilled, western lawyers and judges can say that they have achieved a formal or procedural justice.
Rule of law: the rhetoric and the reality
Ministers in the UK, and indeed the US, do not stint on their verbal support for the principle of the rule of law. It is particularly useful to make the US-UK comparison, first because of the close linkage in foreign policy between the two countries (which through terrorism, affects internal policy as well) and, second because of the very evident contradiction between US rhetoric and its actions under its present President.
For the UK, in 2006 Tony Blair identified
“Belief in democracy, the rule of law, tolerance and equal treatment.”
Speaking on ‘Law Day’ in April 2007, President Bush averred that:
“Our nation is built on the rule of law”
And Jack Straw, then Foreign Secretary, told the Foreign Policy Centre in 2002:
“The respect in which the UK is held in the international community today derives
from many factors: the quality of our armed forces, our political analysis, our
regional expertise and our development programmes; but above all from our
commitment to the international rule of law and to upholding it worldwide”
Taking a similar all-encompassing line, Lord Goldsmith, until recently Attorney General, celebrated the UK’s acceptance of the rule of law as ‘always striving to ensure our actions are justified and supported by the law’. But he also had no trouble in accepting that the UK should ‘adher[e] to … domestic and legal obligations’, such as the European Convention on Human Rights (ECHR), as well as act in accordance with ‘fundamental rights and freedoms’ and with proportionality. Thus, the rule of law is here taken to mean legislation and policies that:
meet the test of legal certainty and the equality of all before the law;
conform to core constitutional values – including human rights, international treaty obligations and the independence of lawyers and judges;
have passed through a Parliamentary process which is open, transparent and honest
A better balance of powers
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