Chapter 3 Answers to quick test questions

1. What are the origins of the rule of law principle? 

The rule of law has its origins in Ancient Greece and, in particular, the writings of Aristotle. He noted that it is better for the law to rule than one of the citizens ... so even the guardians of the laws are obeying the laws’.¹ As Chapter 3 discusses, it is from these beginnings that the concepts has developed.

2. What are Dicey’s three points for the rule of law? 

Dicey’s conception of the rule of law can be explained by the following:

• 1) No punishment without breach of the law
• 2) No man is above the law
• 3) The general principles of the constitution are protected by the courts through the ordinary law of the land.

3. What are formal conceptions of the rule of law and how do they differ from substantive conceptions?

The formal conception of the rule of law, espoused by commentators such as Raz, is concerned with adherence to certain procedural characteristics. These might include the notion that the law should be open, clear, and prospective; or that it should it be consistent and apply generally to all. The substantive conception builds on the formal conception and also adds that the law should adhere to certain moral standards and content, such as respect for fundamental rights. Dworkin is an example of a proponent of the substantive conception.

4. What is the central feature of Raz’s understanding of the rule of law? How and why does Allan disagree with Raz?

At the heart of Raz’s conception of the rule of law is the notion that the law should adhere to certain procedural characteristics, which must be able to guide effective action. Whilst sympathetic to these objectives, Allan argued that Raz was ‘unduly modest’ in his conception and that there was room for expansion and elaboration ‘without [the] danger of collapse into a full-scale theory of social justice’.²

5. Do you find the formal or substantive conception of the rule of law more convincing in view of the UK constitutional order? 

There are arguments that support both views. With regards to the formal conception, certain features of our system ensure that the law is open, clear, stable, and applicable to all, whilst certain cases (such as Anufrijeva and Reilly No 2) demonstrate how values consistent with the formal conception are applicable in the UK. Equally, though, it can be argued that the substantive conception is also evident in the UK system. Cases such as Bourgass and Witham show the importance of fundamental rights in applying the law of the land.

6. In Liversidge, did Lord Atkin favour an objective or subjective test? Do you agree with his judgment in that case?

Lord Atkin favoured an objective test on the basis that inclusion of the word ‘reasonable’ within section 18B of the Defence (General) Regulations 1939 served to invite and expect the court actively to assess the reasonableness of a Home Secretary’s decision to detain individuals of hostile intent. The subjective test, preferred by the majority, appeared simply to ‘take the Home Secretary’s word for it’ that the individual was of hostile intent.

7. To what extent does judicial review of administrative action uphold the rule of law? 

Judicial review of administrative action permits the courts to review and scrutinise acts and decisions of public authorities. In so doing, they are assessing the extent to which these acts and decisions are legal, reasonable, proportionate, and procedurally proper. Considering applications for judicial review in respect of these grounds, however, also permits – more broadly – the courts to consider, examine, and determine the extent to which said public authorities (typically governmental) are acting consistently with values at the heart of the rule of law. The cases of Wheeler and Pierson, for example, discussed in section 3.5.1 of the chapter, demonstrate this important connection between the rule of law and judicial review.

8. How does parliamentary sovereignty relate to the rule of law? 

Chapter 3 explains that there are potential tensions between the rule of law and parliamentary sovereignty. Since Parliament is sovereign and can make/unmake any law whatsoever, it stands to reason that it can legally pass a law which conflicts with values at the heart of the rule of law. Moreover, the courts would – in the orthodox view – be powerless to stand in their way or strike down such legislation. This is not to say, however, that the courts are not able to interpret Parliament’s Acts in such a way that is consistent with the rule of law, as the cases of Anisminic and Evans (discussed in 3.5.2) demonstrate. What is more, the fusion of power that exists between the legislature and the executive means that in reality much of what Parliament does is based on government action, in respect of which the courts can more easily ensure that the rule of law is upheld, typically through judicial review.

¹ Aristotle, Politics and Athenian Constitution, Book III, s. 1287 (John Warrington ed and trs, Dent 1959) 97, cited in Tom Bingham, The Rule of Law (Allen Lane 2010) 3.

² TRS Allan, ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999) 115 Law Quarterly Review 221, 222.