Constitutional: Law and ‘the Rule Essay examples

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The expression ‘the rule of law’ has changed over time, with different meanings developing at different era’s in time. Despite being widely claimed to be the most important element that underpins the Australian legal system, legal theorist constantly struggle to conjure up a succinct definition for ‘the rule of law.’ There are many legal theorists who have offered their own interpretations on the concept of ‘the rule of law.’ This essay examines the explanation that has been developed by many legal philosophers such as AV Dicey, in Introduction to the study of the law of the Constitution. Furthermore its claim of importance will be illustrated with reference to Aristotelian’s view in Politics, and Montesquieu’s piece The Spirit of the Laws. Even though the ideas of many legal theorists have been taken out of context for their definitions of the rule of law and may have ultimately rendered the expression meaningless; this does not mean that there is not an underlying importance of the rule of law.

Aristotelian Origins
The expression of ‘the rule of law’ was first expounded in Aristotle’s Politics, in which Aristotle stated that the expression ‘is preferable to that of any individual.’ Aristotle’s view had persuasively influenced and effectively impacted on these early conceptions of ‘the rule of law,’ as the Fifth-century BC Athenian polis “took great pride in existing as a democracy governed directly by its citizens.” Nevertheless, Aristotle recognised that this kind of democracies can be as tyrannical as any autocratic authority and could lead to power abuse when political power was overly concentrated. Thus, he believes a mixed constitution that combines features of ‘democracy, aristocracy and oligarchy’ can ensures that no group of citizens is in a position to abuse its rights. This political theory and the perception that the rule of law is superior to the rule of man, forms the basis of our current understanding of ‘the rule of law.’

Montesquieu’s Formulation
Montesquieu, a French theorist, formulated his political theory based on the belief in decentralised power. However, his promulgation, The Spirit of the Laws, suggested a different manner to divide political power compare with Aristotelian’s mixed government approach. Montesquieu’s radical idea consist a contemporary free government, where liberty is sustained by a balance of powers, and in which the distribution of power is based on the legal processes of legislation, execution and adjudication. His theory of separation of powers, which ensures that the influence of any one power would not exceed that of the other two, forms the basis of modern liberal political theory, which is the principal method of supporting the rule of law today. Montesquieu’s principal was typified in Entrick v Carrington (1765) case, in which Lord Camden stated “the very idea of the rule of law or Rechtsstaat is that of a state in which determinate and pre-determined rules govern and restrict the exercise of power and regulate the affairs of citizens.”

AV Dicey’s Reinterpretation
Albert Venn Dicey, a constitutional theorist, has profoundly influenced on our understanding of the rule of law, and it is his conception of ‘the rule of law’ that have been influential on twentieth century debates. In his widely known work, Introduction to the study of the law of the Constitution, he stated that the rule of law encompassed three core meanings. His first classic tenet emphasized the absolute supremacy of regular law, as opposed to the influence of arbitrary power. The idea is that no conduct be punish except for that which represents a clear breach of the law. This idea of supremacy is exemplified by the case of Chu Kheng Lim v Minister of immigration, in which the Court protects individuals by denying the rights of governments to make laws that are arbitrary, thus “every citizen is ruled by the law and the law alone” and may be punished for a breach of law, but he can be