The rule of law

A. V.  Dicey

In 1885, the first edition of A.V. Dicey's An Introduction to the Study of Law of the Constitution was published. This book became one of the most influential works of authority on the British constitution. Dicey described the rule of law as one of the 'twin pillars' of the constitution (the other being parliamentary sovereignty) . He saw the rule (or supremacy) of law as the ultimate source of authority to which all, including the institutions of the state are subject. According to Dicey, rule of law has three main elements:

1.       Nobody should be punished unless they have broken the law. 

2.       The same laws should apply to officials of the state just as to the ordinary people. 

3.  The rights of the individual do not stem from decisions  made by the executive (government), but from judgments made in individual cases by individual judges.

The separation of powers

The theory of the separation of powers was first put forward by Montesquieu, a French political theorist in the 18^th century.  The theory states that there are 3 functions of the state: 

• The Executive (government) have strict authority and responsibility to administer the law. 
• The Legislative (parliament)  make the laws and are also authorised to raise taxes and other money bills.                                
• The Judiciary (the judges) apply the law

Why should they be separate? 

• To stop one arm from gaining absolute power and abusing the power they are given. 
• To allow each arm to become more specialised. 
• To stop bias decisions being made (e.g. if a judge makes a law and then tries a case dealing with this law, he may make the wrong decision because of the opinion that has already been made.

The UK constitution...?

Many countries have a document called the constitution. It is a document which describes:

•          the powers the government has in a state
•          the relationship between different parts of the state
•          the relationship between government and the citizen

Probably the most familiar to us is the American constitution which you can read about here. 

In the UK we don't have a document called the constitution but does this mean we don't have a constitution? 

The US constitution is codified which means that the contents is collected together and collected in one place. The UK does have a constitution but it is not codified because it has never been collected together and written down in one document, it's all over the place. 

An example of an early form of the British constitution is the Magna Carta in 1215. This was  one of Britain's first steps to democracy because it set up a committee of 25 barons at any time overrule the will of the king if he defied the charter (Clause 61) and created the law that no freeman can be punished except through the law of the land. 

There are lots of other sources of the UK constitution including: 

1. Statute law - Acts of Parliament that are constitutional
2. Common law - Based on past customs and precedence (when Judges interpret laws and further legal cases use that interpretation) i.e the law has evolved
3. Conventions - Unwritten rules that are followed
4. Works of constitutional authority - Books about the government which help to interpret the law
5. EU laws and treaties - Laws made by the EU that overrule UK law 

So, should it be written in one easy to read document? 

Some would argue that interpretation of the law would be more precise if there was a document to refer to (see the Factortame case) and our membership of the European Community has made things a little confusing. A written document would also make it harder for the leading party to change the laws in their favour; it would reduce 'elective dictatorship'. 

However, the primary reason for a country to create a written constitution is they have undergone a major change such as a war or a revolution, the UK has not gone through such a massive change (arguably since 1066) and therefore our system has evolved as we have and continues to change with us.