Podcast
Questions and Answers
What is the main issue associated with the bare legality conception of law?
What is the main issue associated with the bare legality conception of law?
- It requires laws to be enacted by public referendum.
- It allows for the recognition of immoral laws. (correct)
- It restricts the powers of government officials excessively.
- It demands uniformity in all legal systems.
In Entick v Carrington, what was determined about the authority of the minister who issued the warrant?
In Entick v Carrington, what was determined about the authority of the minister who issued the warrant?
- The minister had constitutional authority for the warrant.
- The minister’s actions were justified due to public safety concerns.
- The warrant was illegal and ineffective due to lack of legal authorization. (correct)
- The minister acted within the bounds of common law.
What was the legal principle involved in the Malone v Metropolitan Police Commissioner case?
What was the legal principle involved in the Malone v Metropolitan Police Commissioner case?
- The necessity for positive legal authorisation for government actions.
- The protection of privacy rights under common law.
- The acceptance of government surveillance unless a legal right is violated. (correct)
- The requirement for obtaining a warrant for any form of monitoring.
What was the outcome of the R (Jackson) v AG regarding the ban on fox hunting?
What was the outcome of the R (Jackson) v AG regarding the ban on fox hunting?
What legal issue was highlighted in R (Unison) v Lord Chancellor regarding Employment Tribunals?
What legal issue was highlighted in R (Unison) v Lord Chancellor regarding Employment Tribunals?
What does the prerogative of mercy imply about the rule of law?
What does the prerogative of mercy imply about the rule of law?
According to Raz, what is one important characteristic of law?
According to Raz, what is one important characteristic of law?
What concern is raised about the narrow conception of the rule of law?
What concern is raised about the narrow conception of the rule of law?
What does the substantive conception of the rule of law include in addition to formal elements?
What does the substantive conception of the rule of law include in addition to formal elements?
What role does the rule of law play in the absence of a codified constitution, particularly in the UK?
What role does the rule of law play in the absence of a codified constitution, particularly in the UK?
What criticism does Elliot provide regarding the concept of legality?
What criticism does Elliot provide regarding the concept of legality?
What does Maheshwari imply about the relationship between legal frameworks and individual rights?
What does Maheshwari imply about the relationship between legal frameworks and individual rights?
According to Lord Bingham, how should a state that represses its people be viewed in relation to the rule of law?
According to Lord Bingham, how should a state that represses its people be viewed in relation to the rule of law?
What is considered essential for legal rules to serve a broader conception of the rule of law?
What is considered essential for legal rules to serve a broader conception of the rule of law?
What does Raz propose regarding the moral aspect of law within the principle of legality?
What does Raz propose regarding the moral aspect of law within the principle of legality?
Flashcards
Bare Legality
Bare Legality
The concept that a law is only valid if it's enacted by a body with constitutional power to do so, regardless of its morality.
Entick v Carrington (1765)
Entick v Carrington (1765)
A case where a government minister illegally tried to seize documents from a suspected traitor, highlighting the principle that even ministers must act within legal boundaries.
Malone v Metropolitan Police Commissioner
Malone v Metropolitan Police Commissioner
This case involved phone tapping by the government, raising concerns about privacy rights. The court ruled that since there was no law prohibiting phone interception at the time, the action was legal.
R (Unison) v Lord Chancellor
R (Unison) v Lord Chancellor
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R (Jackson) v AG (2005)
R (Jackson) v AG (2005)
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Formal Conception of the Rule of Law
Formal Conception of the Rule of Law
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Substantive Conception of the Rule of Law
Substantive Conception of the Rule of Law
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Judicial Review
Judicial Review
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Posthumous Conditional Pardon
Posthumous Conditional Pardon
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Prerogative of Mercy
Prerogative of Mercy
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Equality Before the Law
Equality Before the Law
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Raz's View of the Rule of Law
Raz's View of the Rule of Law
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Unwritten Constitution
Unwritten Constitution
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RoL and the Unwritten Constitution
RoL and the Unwritten Constitution
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Study Notes
Legality and the Rule of Law
- Bare Legality: Law's validity hinges solely on its enactment by authorized bodies. Morally neutral; doesn't consider the law's substance or coherence. Examples include Entick v Carrington, where a warrant lacking legal basis was deemed invalid, and Malone v Metropolitan Police Commissioner, where no right to privacy was recognised.
- Problem with Bare Legality: Doesn't prevent incoherent, impossible, or deeply immoral laws (e.g., slavery). Criticised by Raz and Elliott for lacking practical or legal meaning, becoming a rhetorical device.
- Entick v Carrington (1765): Government officials who break into a house without legal warrant are subject to ordinary law. Government officials can't create their own powers; Parliament does that.
- Malone v Metropolitan Police Commissioner: Government didn't act unlawfully by listening to phone calls (no law prohibiting it at that time).
- R (Jackson) v AG: Ban on fox hunting violated proper statutory authority.
- R (Unison) v Lord Chancellor: Introduction of unaffordable fees for Employment Tribunals violated legal power.
- Bentley: Case regarding posthumous pardon highlighting that the rule of law extends beyond mere legality to fairness and equality.
Formal Conception of the Rule of Law
- Beyond Bare Legality: Basic legality requirements are insufficient; laws must have certain characteristics (like clarity, stability, no retroactivity). The law is a tool for good or ill, following neutral rules.
- Raz's Formal Conception: Emphasizes law's guidance, consistent adjudication, clarity, stability, no retroactivity, access to justice, fair hearing, and judicial review. This is a narrow conception, distinguishing it from other political values.
- Problems with Formal Conception: Is it truly morally neutral? Is legal certainty meaningful without considering its justification in respect to treating people as rational beings? Can't account for all moral or political values.
- Formal v Substantive Emphasis: There might be differences in emphasis, although law doesn't comply with the rule of law, doesn't mean it isn't objectionable.
Rule of Law, Legitimacy, and Unwritten Constitution
- Role of the RoL in the UK: More crucial due to the lack of a codified constitution.
- Substantive Conception: Courts enforce fundamental rights (fair hearing, freedom of expression, legal advice). Emphases equality and includes all elements of the formal conception plus extra values.
- Bingham on Substantive Conception: A state that represses people can't claim to observe the rule of law even with detailed laws. Compliance with fundamental human rights is necessary.
- Allan's View: Equal societies establish rules respecting the dignity of individuals. Rules must be justifiable and consistent with citizens' self-respect.
- Problems with Substantive Conception: Distinguishing "ordinary" from "fundamental" rights, and disagreement about specific applications.
Elements of the Rule of Law
- Basic Rights and the Role of Courts: Courts play a crucial role in enforcing fundamental rights and upholding the rule of law.
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Description
Test your understanding of key legal principles surrounding bare legality and the rule of law. Explore landmark cases such as Entick v Carrington and Malone v Metropolitan Police Commissioner that illustrate the tension between law and morality. Challenge yourself with questions that assess your grasp of legal validity and its implications.
