Notes · LawUK · A-Levels

The Rule of Law

The rule of law is the constitutional principle that everyone, including the government, is subject to and accountable under the law, that no one may be punished except for a proven breach of the law, and that the law must be clear, accessible and applied equally. This synoptic topic examines Dicey's classic account, the modern formal and substantive conceptions of Raz and Bingham, and how the principle is reflected in the English legal system.

4 sections~16 min reading time3 competenciesLevel Foundation 1 · Standard 1 · Advanced 2

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Exam profile

AO1 · Demonstrate knowledge and understanding of the meaning of the rule of law and its principal conceptionsAO3 · Analyse and evaluate the extent to which the English legal system upholds the rule of lawAO1 · Understand the relationship between the rule of law, the separation of powers and parliamentary supremacy

Operators:explainanalyseevaluatediscussassess the extent to which

basic level

AS students should be able to state Dicey's three principles and give examples of the rule of law operating in the legal system.

higher level

Full A-Level answers contrast Dicey with the modern formal (Raz) and substantive (Bingham) conceptions and evaluate real tensions - parliamentary supremacy, wide executive and delegated powers, and unequal access to justice.

Depth

Text

Contents · 4 sections

The Rule of Law

The meaning of the rule of law#

FoundationAQA 7162 - The rule of lawDfE GCE Law subject content

The rule of law is the principle that society should be governed by law rather than by the arbitrary will of those in power, and that the law should apply equally to everyone, including the government. It is one of the central values of the English constitution; its importance is now expressly recognised by section 1 of the Constitutional Reform Act 2005, which provides that the Act does not adversely affect the existing constitutional principle of the rule of law. The principle can be traced back to Magna Carta (1215), which subjected even the Crown to the law, and it underpins ideas such as due process, access to justice and the accountability of public power.

A famous judicial statement of the principle is Entick v Carrington (1765), where the King's messengers who had ransacked a citizen's home under a general warrant were held liable in trespass because they could point to no lawful authority for their actions. The case establishes that the state may only interfere with a citizen's liberty or property where the law positively permits it: if it is not authorised by law, it is unlawful, however desirable it may seem. This is the essence of the rule of law as a control on government.

The rule of law performs several functions. It protects the citizen against the arbitrary or excessive use of state power; it promotes certainty, because people can plan their affairs knowing the legal consequences of their actions; and it secures equality before the law, so that the powerful are subject to the same rules as everyone else. These functions connect the topic to the rest of the specification: the independence of the judiciary, the availability of judicial review, the presumption of innocence and the right to a fair trial are all mechanisms through which the rule of law is put into practice.

Because the rule of law is a principle rather than a single enforceable rule, its precise content is debated, and the various conceptions (Dicey, Raz, Bingham) disagree about how much it requires. What they share is the core idea that power must be exercised according to law and that no one is above the law. Understanding this core is essential before evaluating how far the English legal system lives up to it.

Worked example

Model answer plan: the meaning and importance of the rule of law

'Explain the meaning of the rule of law.' Outline a well-structured response.

Issue
Identify the need to define the principle and show its constitutional importance.
Rule / authority
Define the rule of law as government according to law and equality before the law; cite s.1 Constitutional Reform Act 2005 and Entick v Carrington (1765).
Application
Show the principle at work: judicial review controls unlawful executive action; the presumption of innocence and Article 6 ECHR secure fair trials; judicial independence prevents interference.
Conclusion
Conclude that the rule of law is a foundational, if contested, principle constraining all exercise of public power.

Result: A strong answer defines the principle, anchors it in authority, and demonstrates it through real institutions of the legal system.

Typical mistakes

Treating the rule of law as a specific legal rule that can be directly enforced, rather than a constitutional principle whose content is contested.
Ignoring the authorities (Magna Carta, Entick v Carrington, s.1 CRA 2005) and writing only in general terms.

Active revision

Explain what is meant by the rule of law and how it is reflected in the English legal system.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Dicey's conception of the rule of law#

StandardAQA 7162 - The rule of lawDfE GCE Law subject content

Dicey's three principles

Fig. 1Dicey's three limbs remain the standard framework for evaluating the rule of law.

The most influential account of the rule of law in English constitutional thought is that of A.V. Dicey in Introduction to the Study of the Law of the Constitution (1885). Dicey identified three principles. First, no person may be punished except for a distinct breach of the law established in the ordinary courts - this excludes arbitrary or discretionary power to punish. Secondly, no person is above the law, and everyone, whatever their rank or condition, is subject to the ordinary law of the land and to the jurisdiction of the ordinary courts - equality before the law. Thirdly, the general principles of the constitution, and the rights of individuals, result from judicial decisions in ordinary cases rather than from an abstract declaration of rights - Dicey believed rights were better protected by the common law than by a written constitution.

Dicey's first principle is reflected today in the requirement that criminal offences be clearly defined and in the presumption against retrospective criminal law: a person cannot be punished for conduct that was lawful when done. His second principle underlies the accountability of government to the courts through judicial review, seen in cases such as Entick v Carrington (1765) and the modern insistence that ministers act within their legal powers. His third principle is reflected in the common law's protection of liberties, although the enactment of the Human Rights Act 1998 - importing a written charter of rights - can be seen as a departure from Dicey's preference for common-law protection.

Dicey's account has been criticised as idealised and, in part, out of date. His claim of complete equality before the law overlooked the special legal powers and immunities enjoyed by the Crown and public bodies, and the practical inequality created by differences in wealth and access to lawyers. His hostility to a written bill of rights sits uneasily with the modern reliance on the ECHR and the HRA 1998. And his third principle underestimated the growth of statute and delegated legislation as sources of both rights and government power.

Nonetheless Dicey's three principles remain the standard starting point and a useful framework for evaluation. Each principle can be tested against modern reality: the first against wide discretionary and delegated powers, the second against Crown and state immunities and unequal access to justice, and the third against the shift from common-law to statutory rights protection. A strong answer uses Dicey as a benchmark and measures the current legal system against each of his three limbs.

Worked example

Model answer plan: Dicey's three principles

Plan an answer explaining and evaluating Dicey's conception of the rule of law.

Issue
Identify the task as stating Dicey's account and testing it against modern law.
Rule / authority
State the three principles: no punishment except for a proven breach of law; equality before the law; rights protected by the ordinary courts (Dicey, 1885).
Application
Test each: principle 1 against retrospective-law and clarity requirements; principle 2 against judicial review (Entick v Carrington) but also Crown immunities; principle 3 against the HRA 1998.
Conclusion
Conclude that Dicey remains a valuable benchmark but that his account of equality and of common-law rights is now qualified.

Result: The plan states the three principles accurately and evaluates each against a real modern feature of the legal system.

Typical mistakes

Listing Dicey's three principles inaccurately or in a jumbled form; precision in stating them earns AO1 marks.
Presenting Dicey as beyond criticism; the AO3 marks come from testing his account against the modern system.

Active revision

Explain Dicey's conception of the rule of law and evaluate how far it is reflected in the modern English legal system.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Modern conceptions: formal and substantive#

AdvancedAQA 7162 - The rule of lawDfE GCE Law subject content

Formal versus substantive rule of law

Fig. 2Both conceptions demand legality and fair process; only the substantive view builds in rights protection.

Modern writers distinguish formal and substantive conceptions of the rule of law. A formal conception is concerned only with how law is made and applied - that it be prospective, clear, stable, general and applied by an independent judiciary - and not with the moral content of the law. Joseph Raz is the leading formal theorist. In his essay The Rule of Law and its Virtue he argued that the rule of law is essentially the principle that the law must be capable of guiding behaviour, and he set out principles such as that laws should be prospective, open and clear, relatively stable, and that the courts should be accessible and independent. Crucially, Raz insisted that the rule of law is a negative value - it prevents the harm the law itself can do through arbitrariness - and that a legal system can comply with it yet still be unjust; the rule of law is not the whole of political morality.

A substantive conception, by contrast, holds that the rule of law also requires the law to protect fundamental human rights and to secure a measure of justice. Lord Bingham, in his book The Rule of Law (2010), offered an influential list of eight principles that combines formal and substantive elements: the law must be accessible, clear and predictable; questions of legal right should be resolved by the application of law rather than the exercise of discretion; the law should apply equally to all; it must afford adequate protection of fundamental human rights; means must be provided to resolve civil disputes; ministers and public officers must exercise their powers in good faith and within their limits; adjudicative procedures must be fair; and the state must comply with its obligations in international as well as national law. Bingham's inclusion of human-rights protection makes his account substantive.

The difference matters for evaluation. On a formal (Raz) view, a legal system can satisfy the rule of law even if its laws are harsh, provided they are clear, prospective and impartially applied; the rule of law then guarantees legality and certainty but not justice. On a substantive (Bingham) view, a system that enacts clear but oppressive laws fails the rule of law because the principle includes respect for rights. Both accounts help to explain and evaluate features of the English system: the requirements of clarity and non-retrospectivity are formal virtues, while the protection of rights under the HRA 1998 reflects the substantive conception.

Evaluation asks which conception is preferable and how far the English system satisfies each. The formal conception has the virtue of being neutral and workable, but it may seem to drain the rule of law of moral force. The substantive conception is more demanding and morally attractive but risks merging the rule of law with a contested theory of justice, and transferring to unelected judges the power to decide what rights the law must protect - which raises the same legitimacy concerns as the debate over the HRA 1998. A strong answer takes a reasoned position on where the rule of law should sit between these poles.

Worked example

Model evaluation-essay plan: formal versus substantive conceptions

Plan an essay evaluating the formal and substantive conceptions of the rule of law.

Thesis
Argue that the English system embodies mainly formal virtues but that the HRA 1998 imports a substantive element.
Rule / authority
Explain Raz's formal conception (prospective, clear, stable law that guides conduct; morally neutral) and Bingham's substantive eight principles including protection of fundamental rights.
Application
Map English features onto each: clarity and non-retrospectivity (formal); the HRA 1998 and Article 6 (substantive).
Evaluation
Weigh the neutrality and workability of the formal view against the moral force but contestability of the substantive view; note the judicial-legitimacy concern.
Conclusion
Conclude with a reasoned preference, for example that a mainly formal conception with defined rights protection best balances legality and legitimacy.

Result: The plan accurately separates the two conceptions, applies each to English law, and reaches a reasoned position.

Typical mistakes

Confusing Raz and Bingham, or presenting the formal/substantive distinction without explaining why it matters for evaluation.
Assuming the rule of law obviously requires the protection of rights; that is precisely the point Raz contests.

Active revision

'The rule of law is concerned only with the form of law, not its content.' Analyse and evaluate this statement.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

The rule of law in the English legal system#

AdvancedAQA 7162 - The rule of lawDfE GCE Law subject content

The rule of law as a check on power

Fig. 3Courts hold power to account, but parliamentary supremacy limits how far they can go.

The rule of law is embedded in the English legal system through a set of practical mechanisms, but each is also a site of tension where the principle is arguably compromised. Judicial review is the clearest expression of the principle that government must act within the law: the courts can quash executive action that is illegal, irrational or procedurally unfair, holding ministers to the limits of their powers. The independence of the judiciary - security of tenure for senior judges (now under the Senior Courts Act 1981 and protected historically since the Act of Settlement 1701), and the separation of the judiciary from the executive and legislature reinforced by the Constitutional Reform Act 2005 and the creation of the Supreme Court - ensures that the law is applied impartially, even against the government.

The greatest tension is between the rule of law and parliamentary supremacy. Because Parliament is legally sovereign, it can in principle enact any law, including one that is retrospective, that ousts the jurisdiction of the courts, or that infringes rights. The rule of law says the law should be prospective and rights-respecting; parliamentary supremacy says Parliament may legislate otherwise. The courts manage this tension through interpretation - reading legislation, where possible, so as to comply with the rule of law and with Convention rights under section 3 of the HRA 1998 - but they cannot strike down an Act of Parliament. The declaration of incompatibility under section 4 HRA 1998 (as in A v Secretary of State for the Home Department (2004), the Belmarsh case) leaves the offending Act in force, illustrating the limit.

Other tensions arise from the breadth of executive and delegated power. Wide discretionary powers conferred on ministers, and the huge volume of delegated legislation, sit awkwardly with Dicey's objection to arbitrary power, and are controlled only imperfectly by parliamentary scrutiny and the ultra vires doctrine. Access to justice is a further practical concern: the rule of law requires that legal rights be enforceable in practice, yet the reduction of legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has made it harder for many people to vindicate their rights, prompting the criticism that equality before the law is formal rather than real.

Evaluation therefore reaches a balanced verdict. The English legal system contains strong structural guarantees of the rule of law - independent courts, judicial review, fair-trial rights and the recognition of the principle in section 1 of the CRA 2005. But the sovereignty of Parliament, the breadth of executive and delegated power, and unequal access to justice mean the principle is honoured imperfectly. A convincing answer identifies specific mechanisms and specific tensions and forms a reasoned judgement on how well, overall, the system upholds the rule of law.

Worked example

Model evaluation-essay plan: how far does the system uphold the rule of law?

Plan an essay evaluating the extent to which the English legal system upholds the rule of law.

Thesis
Argue that the system provides strong structural guarantees but that they are qualified by supremacy, executive power and access to justice.
Rule / authority - strengths
Cite judicial review, judicial independence (CRA 2005; Senior Courts Act 1981), fair-trial rights (Article 6 ECHR) and s.1 CRA 2005.
Application - tensions
Analyse parliamentary supremacy and the s.4 HRA 1998 declaration of incompatibility (A v Home Secretary (2004)); wide delegated power; LASPO 2012 legal-aid cuts.
Evaluation
Weigh the guarantees against the tensions to reach a qualified judgement about real, not merely formal, compliance.
Conclusion
Conclude that the system substantially but imperfectly upholds the rule of law, with access to justice the weakest link.

Result: The plan pairs each supporting mechanism with a genuine tension and reaches a reasoned overall verdict.

Typical mistakes

Claiming the courts can strike down an Act of Parliament; under s.4 HRA 1998 they can only declare it incompatible.
Describing the mechanisms that support the rule of law without acknowledging the tensions that qualify it, or vice versa.

Active revision

'The English legal system upholds the rule of law effectively.' Analyse and evaluate this statement.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

References & sources

Sources

Department for Education

GCE AS and A level subject content for law

AQA

AQA A-level Law (7162) specification

The Rule of Law

4 sections~16 min reading time3 competenciesLevel Foundation 1 · Standard 1 · Advanced 2

The Rule of Law

Key points

Model answer plan: the meaning and importance of the rule of law

Key points

Model answer plan: Dicey's three principles

Key points

Model evaluation-essay plan: formal versus substantive conceptions

Key points

Model evaluation-essay plan: how far does the system uphold the rule of law?

Sources

The Rule of Law

Key points

Model answer plan: the meaning and importance of the rule of law

Key points

Model answer plan: Dicey's three principles

Key points

Model evaluation-essay plan: formal versus substantive conceptions

Key points

Model evaluation-essay plan: how far does the system uphold the rule of law?

Sources