This is from Textbook, summarised.
The concept of rule of law is that all people and institutions in a nation-state are governed by and subject to the law. This means that no person or group stands above the law and no-one may violate it without punishment. This protects individuals of society from abuse of power (arbitrary power – exercise of power without any reference to law) from the state.
Principles of rule of law within the Australian legal system include:
o Independence of the judiciary
o The concept of a fair trial
o Individual rights in relation to arrest and questioning procedures
o Provision of legal aid
o The right not to incriminate oneself
o Right of the accused to provide a defence that is free from state interference
o Rights of the accused to be informed of the alleged crime with which they are being charged
o Law must apply equally to all, regardless of status or position in society
This is from Effectiveness of criminal law by Nicholas Cowdery AM QC DPP, NSW summarised as well.
Rule of law
Sir Ninian Stephen in his 1999 Annual Lawyers’ Lecture for the St James Ethics Centre said:
“Maintaining the rule of law is the true basis of democratic society. Without it democracy is a misleading and empty phrase.”
The rule of law does not mean:
o Rule by law (that is, so long as there is a law on the subject, the rule of law is operating)
o The law of the ruler
o ‘Law and order’ or related notions of regulation and authority.
There are two principal features of the rule of law:
o The people (including the government) should be ruled by the law and obey it.
o The law should be such that the people will be able and willing to be ruled (or guided) by it.
The World Justice Project (WJP) defines the rule of law as four universal principles:
1. The government and its officials and agents are accountable under the law.
2. The laws are clear, publicised, stable and fair and protect fundamental rights, including the security of persons and property.
3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
4. The laws are upheld and access to justice is provided by competent, independent and ethical law enforcement officials, attorneys or representatives and judges who are of sufficient number, have adequate resources and reflect the makeup of communities they serve.
12 Requirements
1. There must be laws prohibiting and protecting against private violence and coercion, general lawlessness and anarchy—members of society must be free to enjoy their rights and a degree of social order must be maintained.
2. The government must be bound (as far as possible) by the same laws that bind the individual—the law stands above all and governments/officials should not be exempt from it.
3. The law must possess characteristics of certainty, generality and equality. Certainty requires that the law be prospective, open, clear and relatively stable. Laws must be of general application to all subjects. They must apply equally to all.
4. The law must be and remain reasonably in accordance with informed public opinion and general social values and there must be some mechanism (formal or informal) for ensuring that—a reflection of society’s values.
5. There must be institutions and procedures that are capable of speedily enforcing the law—police, courts etc.
6. There must be effective procedures and institutions to ensure that government action is also in accordance with the law—reviews and inquiries etc.
7. There must be an independent judiciary, so that it may be relied upon to apply the law—the judiciary must be independent from the legislature and executive.
8. A system of legal representation is required, preferably by an organised and independent legal profession—legal aid is not always readily available.
9. The principles of “natural justice” (procedural fairness) must be observed in all hearings.
10. The courts must be accessible, without long delays and high costs—Justice delayed is justice denied and often in this respect even this country falls down badly.
11. Enforcement of the law must be impartial and honest—corruption of police poses a problem a while ago.
12. There must be an enlightened public opinion—a public spirit or attitude favouring the application of these propositions.
The first part should be available in my sample notes while the second part is in my crime notes. Hope that helps you a little.
