Question

What is one of the basic assumptions of the rule of law?

1. The president of the United States is exempt from most laws

2. Laws are applied differently to certain classes of persons based on wealth or social status.

3. Laws are based on moral and religious principles which promote order and harmony in society.

4. Standards of behavior established by applying to all people equally

Answer 1

The Rule of Law and Common Law Constitutionalism

It is one thing for a court to refer to the rule of law, to explain the purpose or value of certain legal principles and practices. But some scholars present a far more radical argument: that the rule of law is a necessary standard of legal validity. TRS Allan stands at the vanguard of this movement. He argues that an expansive conception of the rule of law, articulated by the common law courts, constrains government power in any genuine liberal democratic order – whether or not it is enshrined in a written constitution. As the rule of law does not depend upon any particular constitutional document, it transcends jurisdictional boundaries. It forms the central pillar of a common law constitution.

Some of these ideas have found favour with members of the judiciary in other countries.

Yet, the rise of the rule of law has not been uncritically accepted. The idea that this complex and contested concept forms an inherent constraint on government power has been challenged – especially within the United Kingdom, where it seems antithetical to the doctrine of parliamentary sovereignty. Though dicta such as those from R (Jackson) v Attorney- General demand attention, there are many more cases which affirm the traditional view: that the Parliament in Westminster is sovereign, and hence can make and unmake any law that it thinks fit