Law Unfinish

Introduction Rule of law is a legal principle that its ideal is started long before 16th century England. The Oxford English Dictionary has defined "rule of law" this way:
The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes. Hence, it implies the idea of each citizen including government officials is subject to the law and no one should be placed above the law. In contrast, it opposes the idea of dictatorship, collective leadership or autocracy where the rulers are given supreme power held above the law. Thurs, rule of law can be simplified with a phrase “by law, not men”, a system based on neutral and universal rules. It helps to constrain on government power and bring out the importance of fundamental rights. To practice rule or law, the laws under the principle of rule of law must more than arbitrary or reasonless exercise of discretion rather it is aimed at particular individuals. The law must be reasonable for all people to follow. People are required to understand the law requires where it take place. Thus, the law must be clear and open public prospectively. Besides, it must it fully and fairly enforced, accessible, and impartial tribunals.
A.V Dicey Many region and legal theorists have adapted the principle of rule of law. They believed that law must be publicly with proper application and process generality, equality, and certainty. Rule of law was popularized by Albert Venn “A.V” Dicey, who was a British jurist and constitutional theorist in. In his book “Introduction to the Study of the Law of the Constitution (1885)”, he summarized rule of law under 3 main tenets:

1. A man can only be punished if it was proved in court that he breached a law.
2. No man is above the law, and everyone is equal before the law.
3. The Constitution (the law) is the result of previous judicial decisions determining the rights of private persons. First tenet, A.V Dicey stated that everyone including government actions is bounded by the law and only can be punished or held by law if they has been break the law. Neither he nor she will be suffered to the law if the law is not break. Hence government can only do things that are authorized by or within the law. Second, he pointed out that law that treated to each person is same regardless of social, economic or political status. Everyone will be charged equally to the same law and be subject to the same law courts. Governments and citizens will obey the same law and no specialty will be given to anyone. Then A.V Dicey’s third tenet shown that the constitution is not the source of the law, but the consequence of inherent rights. The constitution is the result of the judicial decisions of the rights. All of the tenets help to bring up A. V. Dicey’s the basic foundation of the rule of law.

Entick v Carrington [1765] is a leading case in English law establishing the civil liberties of individuals and limiting the scope of executive power. This case brings an influential in other common law jurisdictions and was an important motivation for the Fourth Amendment to the United States Constitution. John Entick who is a Grub-street writer sued King’s Chief Messenger, Nathan Carrington and three other King’s messengers James Wastson, Thomas Ardan, and Robert Blackmore for broken into his house in the parish of the ST Dunstan, Stepney “with force and arms” trespassing on his land. They had broke open locks and door in his house then searched all of the rooms before taking away 100 charts and 100 pamphlets, which causing £2000 of damage to John Entick. Carrington and his colleagues claimed that they acted on Halifax’s warrant, “to make strict and diligent search for…the author, or one concerned in the writing of several weekly very seditious papers intitled, The Monitor, or British Freeholder”, so that they could not be liable for the tort. However, Lord Camden who presided over the trial held that Halifax had no right under statute or under precedent to such a warrant and therefore found by Entick’s favour. In his famous statement:
“That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. … If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.” He stated that “If it is law, it will be found in our books. If it not to be found there, it is not law." Therefore, rule of law can clearly seen practice in this case that Carrington is guilty even he and his colleagues acted on Halifax’s warrant. These lead the limits of executive power in English law. This case helps to illustrate Dicey's ideas that no men is above the law where the executive power is limited and bounded by the law.

Another case is M v Home Office [1993] HL. M was deported in alleged breach of an undertaking by the Home Secretary’s counsel not to remove him, and was not returned in breach of a court order to return him. The Home Secretary did not consider himself is bounded by the order as his mandatory interim injunction against him (as an officer of the Crown) had been made without jurisdiction. Hence, the Home Secretary was held in contempt of court. However, no punishment is imposed to the Home Secretary. This case is leaded by Lord Woolf but a speech is made by Lord Templeman offering interesting observation about the relationships between Crown as Monarch, the Crown as Executive, Parliament and the courts. His statement is:
“My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War." In this case, judicial review that Home Secretary cannot ignore rule of law. Rule of law requires even government ministers to accept and obey the orders of the courts. This show how A. V. Dicey ideas rule of law is implemented.

Reverent to today Rule of law can bring many benefits to the society where it constraints the power of government and brings equality to everyone right under a clearly, stable and prospective law. It proposes that government should have restraints, not possess discretionary powers. It should be legal controls over the government's activities and no one including government officials should be above the law. However, it also brings contradiction to society today.
1. Retrospective In A.V. Dicey idea of rule of law, retrospective effect could not apply in the law. Any action that is not breach of law during the time where it was admitted is not unlawful. The element also implied that no retrospective penal law can be legislated. If such law is imposed, the individual is placed in the position where his conduct was lawful at the time of his action but, subsequently, he is convicted as if his early conduct was unlawful. This is contrary to the first element – No man can be punished except for a distinct breach of law. In the case R v R [1991] 3 WLR 767, the House of Lords argued that the rule against the liability of rape within marriage was anachronistic then convicted the defendant. The defendant was charged with the attempted rape of his wife. At the time of the offence the couple had separated although no formal legal separation existed and neither party had partitioned for a divorce. The wife had left to live with her parents but there was no formal separation, although the wife had consulted solicitors. The prosecution claimed that the husband had broken into her parents’ home and raped her. The defence argued that there was no such offence, because of the marriage exemption. The case was appealed until it reached the House of Lords. The judgment was given by Lord Keith of Kinkel who said that the contortions being performed in the lower courts in order to evade the marital rights exemption demonstrated how absurd the rule was. He said that, the marital rights exemption was a “common law fiction” which had never been a true rule of English law. Kinkel concluded that “the fiction of implied consent has no useful purpose to serve today in the law of rape” R’s appeal was accordingly dismissed, and he was convicted of the rape of his wife. His statement:
"It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale's proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable." If the court doesn’t apply the retrospective effect, the husband will not be liable for what he had done to the wife. It also will give a consent that a husband has a right to have a sex intercourse with wife whether the wife is willing or unwilling which strip the human right of the wife. Hence this retrospective effect applied to protect the wife from her husband abusive. This case presented the way that retrospective effect not necessary is a breach of equality and contradiction to rule of law.
2. Immunity Dicey’s second principle states that everyone is subject to the same in law including government. However in real practice, law is subjected to many exceptions. Under Common Law and Criminal Evidence Act 1984, there is exception and immunity for certain people in the society such as police and Members of Parliament. These exceptions are given to ensure the public safety and maintaining the law order. For example, Police have power over and above the citizen. This helps to ensure the safely living in society and they given a responsible to control citizen action to prevent they breach the law. Besides, members of parliament have immunity against law of defamation. The immunity gives a privilege as it permits free and frank discussion of abuses and scandals without fear of any reprisals by way of court action for damages in slander or by way of prosecutions. Sir Ivor Jennings who was a British lawyer and academic. He pointed out that: “No two citizen are entirely equal.” He also ruled out Dicey’s interpretation and give his points that eryone is equal and subject to the same law, the executive and legislative power may have immunities, but in the sense they should be accountable for their actions.

Separation of power
Conclusion