Rule of Law Constitutional Law. © Copyright 2013 Tolga R Yalkin.

Rule of LawConstitutional Law

What do we want to know?

• Where has the rule of law been invoked successfully and unsuccessfully?

• What does the rule of law, as a philosophical concept, include?


Aristotle, 384–322 BC


• The law should govern

AV Dicey, 1885


• No one punished or made to suffer except for breach of law provided in ordinary court.

• No one above the law and everyone equal before law regardless of social, economic, or political status.

• Law incudes judicial decisions, not just statutes.

Joseph Raz, 1977


• Laws prospective not retrospective

• Laws stable, not changed frequently

• Rules for making laws clear• Judiciary independent• Principles of natural justice• Judicial review• Courts accessible and no one

denied justice• Prosecutorial discretion

exercised consistent with the rule of law

McLachlin CJ, 1992

• No private lawlessness• Government under law• Laws ordinary certain, general, equal• Mechanisms ensure law reflects

social values• Effective and impartial law

enforcement• Administrative review• Judicial independence• Legal representation• Principles of natural justice• Accessibility of courts• Impartial and honest law

enforcement• Attitude of legality


Procedural• Rules for making laws

clear• Principles of natural

justice• Courts accessible and

no one denied justice

Substantive• Laws ordinary certain,

general, equal


Confirmed• Right of access to courts

(NAPE)

• Law supreme over government and private persons (Roncarelli)

• Positive set of laws must be maintained (Manitoba Language Rights)

• Exercise of public power must be authorized by law (Provincial Judges)

Rejected


• Absolute right to counsel (Christie)

• Right of appeal from admin decisions (Vanguard)

• Prohibition on extinguishing contractual rights (Bacon)

• Laws be prospective not retrospective, be general in nature, not confer special privileges on gov’t except where necessary (Imperial Tobacco)

• Right to trail according to existing civil procedure (Imperial Tobacco)

Recap

• Know philosophical underpinnings and decided cases

• If the rule of law is invoked in same way as a case that has been decided, apply that case.

• Anticipate new ways in which the rule of law might be invoked, and determine, based on the decided cases, whether you think it would be accepted by the courts.


END


Rule of Law Constitutional Law. © Copyright 2013 Tolga R Yalkin.

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Transcript of Rule of Law Constitutional Law. © Copyright 2013 Tolga R Yalkin.