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Constitutional Principles Notes

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This is an extract of our Constitutional Principles document, which we sell as part of our LAWS204 Public Law Notes collection written by the top tier of Univerity Of Otago students.

The following is a more accessble plain text extract of the PDF sample above, taken from our LAWS204 Public Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Constitutional Principles Rule of Law Government should be ruled by law, not men. We do not choose to be subject to the state's power, to follow its orders.

Three tenants of minimalist 'rule of law'

1. No punishment without first establishing a breach of law through the courts. 1) "The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the exist ence ... Even of wide discretionary authority on the part of the government." - Dicey 2) Those with public power must be able to point to some form of authorisation in law before they can detrimentally affect the p eople's legal rights (through punishment or otherwise). 3) The law to do with public power affecting citizens ought to be relatively clear and understandable

2. All persons are equal before the law. 1) "equal subjection of all classes to the ordinary law of the land administered by the Courts." a) All subject to court's jurisdiction should they transgress the law as it applied them. 2) The law will apply to and bind all people equally. 3) Where an individual's status or identity does confer different rights or obligations under law, that difference in treatment should be strongly justified by good reasons.

3. It should be assumed that the law will not unjustifiably infringe upon the rights and liberties of the individual citizen. 1) "The laws of the constitution ... Are not the source but the consequence of the rights of individuals." 2) There is a basic imbalance of power between the individual and the state. Therefore the rule of law ought to make up for the imbalance by giving the individual more strength. 3) The rights of the individual are secured by the ordinary remedies of private law available against unlawful interferences of liberty by other individuals or the state. Three other tenants:

1. Law and order better than anarchy 1) Hobbesian concept. 2) But the rule of law and political liberty are interdependent?
a) Without rule of law, rebellion only option left. b) Without political liberty, the rule of law is left empty of moral force.

2. Government according to law 1) Legal authority must be shown for government action. 2) But if all this means is official acts are to be clothed in legality, ther is no guarantee that other fundamental values won' t be legitimately infringed.

3. The rule of law as a broad political doctrine 1) Either: the RoL as formal values of a political system: prospective, open, certain and guiding, unbiased, fair hearings. a) Compatible with gross violations of human rights 2) Or: the RoL as a substantive concept, containing values of human dignity, liberty and democracy. Contradictions of the rule of law: Parliament: Rule of law depends on P for non-arbitrary, democratic decision making, yet P's absolute sovereignty makes it a threat to rule of law. P may be limited by commitment to constitutionalism, or an entrenched constitution (which places burdens on the...) Courts: Rule of law requires clear, certain, prospective law; common law is complex and by definition retrospective. Courts: RoL says they must apply law as legislated, but Courts will strain to interpret law that is antithetical to the RoL s o as to make it comply. International law: Rule of law is based on equality before the law, yet implemented by states whose actions are often arbitra ry and self-interested. Rule of law cases Entick v Carrington, (1765), "The case of the seizure of papers' Entick was the suspected author of anti-government pamphlets. It was an offence to publish "seditious libel", or "Gross and scandalous reflections upon his majesty's government or both houses of Parliament". Earl of Halifax wrote a permit to search Entick's house for seditious pamphlets. Acting on this warrant, Carrington and three other men (secretary's messengers) broke into Entick's house, ransacked it and took all the papers Entick commenced a civil action in trespass seeking damages. Carrington's defence:

1. Had a warrant from Earl of Halifax, a principle secretary of state. The warrant must be lawful, so should give legal immunity. a. But If warrant can lawfully excuse , the Earl must a legal basis for this. b. There is no basis in statute for this authority, so it must lie in the common law. c. Carrington argues the Earl has such authority based on basic custom and established practice, recognised by the courts. i. The warrant gives so much power to the messengers that if it is lawful it should be clear in propertion as the power is exorb itant. Arguments for lawfulness of warrants

* Such warrants have been issued frequently since the revolution (70 years ago)
* But public law cannot come from private dealings: there must be an authority 'on the books'. Otherwise: not law.

* Such warrants have been executed without resistance without any claim arising
* But warrant gave so much power - can take any document, have no witnesses, break into house, and no remedy is available for innocent victims.
* Because of the exceptionally wide nature of the warrants, must be shown clearly in law that they are lawful.
* It would be strange doctrine to assert that what a few criminal booksellers are afraid to dispute is universal law.

* Such warrants are essential to government to crack down on seditious libel. State necessity.
* The common law does not understand a distinction between state offences and others.
* Not enough to argue this, as people in the Earl's position will always think its necessary to do bad things against the peopl e for governmental raesons. Dangerous argument to run.

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