Chapter 1 Guidance to answering the practical exercises

Introduction to law

Q1:  Why do you think law is important?

This is a question that raises issues of general significance, but also personal attitudes to the law. You may have thought of many different reasons for the importance of law, beyond any highlighted in Chapter 1 and here.

Chapter 1 approached the question from various angles, and important perspectives might include:

  • Law, perhaps along with religion, provides the critical system of rules to reflect a set of moral values within society. Without it, individuals would be at the mercy of anarchy.
  • Without law, modern societies could not function. This idea goes back to the ‘Social Contract’ devised by Hobbes, mentioned at 1.4.3. In return for the mechanisms of the state and for its protection by the Rule of Law, individuals give up sovereignty.
  • Law underpins a variety of academic disciplines, providing a rule set in which they may be practiced and discussed.

Q2: Should law-makers have a moral agenda?

The answer to this question is very much a matter of personal preference.

In reality, anyone involved in law-making, be they judges, MPs or ministers, will have their own set of morals, and it is very unlikely that these are not in some way reflected in their law-making.

Political parties are comprised of people with roughly similar values, and are elected on the basis of the public’s views of these values. One view is that an MP should stick to these values because they roughly reflect the views of those who elected them, insofar as circumstances allow. Another is that they should not be too dogmatic, otherwise they will be unable to adapt to changing circumstances. The Liberal Democrats in the 2010-2015 coalition government found themselves torn between the manifesto commitment to scrap tuition fees and the need to reduce spending.

It is arguably less easy for a judge to adhere strictly to a set of morals, as they have no democratic mandate- Chapter 5 explores this issue further.

Q3: Is jurisprudence relevant in practice?

For a student, jurisprudence is valuable in itself. Whilst focusing on the practice of law is vitally and pre-eminently important, anyone learning the law should have wider horizons, and this may well include understanding the broader philosophy of law. But for a practitioner the relevance of jurisprudence is less obvious.

Part of jurisprudence is the studying of law’s place in its context. This is important. A lawyer cannot simply divorce himself from politics, philosophy and society (to name only three related disciplines).  The role of morality is important too.

John Gardner, in his article “Why study Jurisprudence”, gives two justifications:

    - That it trains lawyers in excellence in logical and structured argument
    - That it looks beyond the narrow immediate issue at hand in a legal dispute and encourages deeper issues to be given thought, for instance, the Rule of Law, or the Separation of Powers.

Q4: Is the Rule of Law an intellectual construct, designed to justify the Western democratic state?

You may have interpreted this question in one of two ways: firstly, is it used as a smokescreen by governments seeking to distract people from their misdeeds, and secondly, is it in itself a desirable paradigm?

In Chapter 1 you have read how difficult it is to be definitive about the rule of law, but that there are certain indicative characteristics. We can use these factors to measure the degree to which a state measures up to the ideal of the fair and consistently organized state. At 1.5 you read that this exercise has been applied scientifically to all states by the World Justice Project. It is increasingly difficult for any ‘smokescreen’ to be effective.

As to the second interpretation of the question, this is more a matter of opinion. Although not the opinion of this author, who is to say that arbitrary or discriminatory use of power is in itself wrong? States can run quite effectively, where certain rights are denied its citizens and where different factions are treated in different ways. Democracy, for instance, can produce indecisive government when the World throws up challenges that need decisive action. Not all monarchies and autocracies have been unmitigated failures. Not all democracies are successful- particularly so in countries where there is little ‘democratic tradition’.

It is, however, difficult to suspend one’s instinctive commitment to values such as human rights and equality before the law, and conclude that any state that places less of an onus on such ideals has a preferable set of values. It is therefore hard to see beyond the Rule of Law as an ideal to which states must aspire.

Q5: Is the Separation of Powers appropriate in the modern world?

In 1.6 you read that the doctrine of separation of powers has met with mixed success in practice.

Few modern states display a ‘pure’ separation of powers, so it is quite difficult to reach a definitive conclusion. Many states differentiate powers in different ways. Although the traditional doctrine refers to a “horizontal” separation of different roles, most states also display a vertical ‘Division of Powers’ between different ‘levels’ of government.

You might legitimately ask why government should be separated from legislating and why these should be isolated from tribunals and courts. The reason was set out at 1.6 and remains valid- it is the best bulwark against creeping tyranny. This is particularly so when combined with ‘checks and balances’ to prevent any branch acquiring dominance over the others.

In the US, by the early 1970s, an ‘Imperial Presidency’ (a term coined by the commentator Arthur M Schlesinger Jr.) had arguably developed, where the President had by far the most authority in the US system. Nixon’s ‘Watergate’ scandal led to the fettering of the President’s freedom to drive legislation through congress, execute policy without oversight or set the moral agenda. It is arguable that the US executive branch has never since regained pre-eminence.

In the UK a less formal ‘rebalancing’ mechanism exists whereby periods of executive strength are often followed by Parliamentary reassertion. This pattern is illustrated in the post-Thatcher and post-Blair periods. An illustration might be the contrast between the impunity with which the Blair administration went to war in Iraq in 2003 (despite significant public opposition), and the fact that the Cameron administration in 2013 felt unable to act against Syria without first consulting Parliament, a step hitherto constitutionally unnecessary.

Another reflection of this mechanism was the litigation relating to the triggering of TFEU Article 50, to initiate Brexit. The question eventually considered by the Supreme Court was whether Article 50 could be exercised by the government (through the Prime Minister) alone, via the Royal Prerogative, or, if it instead required Parliamentary approval. The Supreme Court concluded on 24thJanuary 2017 that the triggering of Article 50 required Parliamentary approval.

This was reinforced during the closing episodes of Brexit-related wrangling in 2019. The newly-installed Johnson administration prorogued Parliament for a longer period than normal (one of the longest since the Glorious Revolution constitutional settlement). The Supreme Court heard a judicial review of this decision, and unanimously found that the executive had overreached its remit. The President of the Supreme Court, Lady Hale, stated, "The decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification."

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