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Legislation and statutory interpretation.

Module D: Tests for quality of legislation.

Chapter 2: The rule of law.

Three kinds of definitions
The first element of the rule of law is the basic principle that everyone (incl. the government) is subject to the law. The second element of the rule of law is that it represents the ideal of a legal system.

In other words, the criteria proposed by Fuller, Raz, and Bingham can be grouped into three:
 * 1) Criteria to promote such law that people who are subject to it can plan their actions accordingly: law that is general, prospective, stable, accessible, and reasonable/understandable (e.g. not contradictory, not requiring the impossible).
 * 2) Criteria to sustain an accessible legal/governance system (incl. legislative, judicial, executive branches) that is fair, not arbitrary, and able to protect rights and provide remedies; authorities also must follow the law fully and act fairly.
 * 3) “Thick” substantive provisions such as human rights, natural justice, and international order: Bingham promotes this explicitly.

Rule of law – at least in the “thin” version – is a necessary but not sufficient condition for a good society; it may be a useful instrument but does not guard against abuse: Joseph Raz, pace Friedrich Hayek. By itself, the doctrine does not guarantee virtue or excellence. It is impossible to achieve perfection in the practice of the rule of law – it is always a matter of degree: Fuller, Raz.

Ron Fuller

 * Generality of law (against “palm tree justice” or “dog law”)
 * Promulgation (ZL and VL v Home Secretary [2003] EWCA Civ 25)
 * Few if any retroactive laws, esp. in tax and criminal laws
 * Clarity of laws
 * Few if any contradiction in laws
 * No laws requiring the impossible
 * Constancy of law through time
 * Congruence between official action and declared rule

Joseph Raz
Axiom: citizens ought to be able to obey the law.
 * Laws should be open, prospective and clear
 * Laws should be relatively stable
 * The making of laws should be guided by open, stable, clear and general rules
 * Independence of the judiciary
 * Application of the rules of natural justice
 * Court power to review implementation of the principles
 * Courts should be accessible
 * Discretion of crime-preventing agencies should not pervert the law

Tom Bingham

 * Law should be accessible, intelligible, clear and predictable
 * Law not discretion: but in Buckoke v Greater London Council (1971) 2 All E.R. 254, Lord Denning held that not all criminal acts need to lead to prosecution.
 * Equality before the law
 * Power must be exercised fairly
 * Human rights
 * Access to courts
 * A fair trial
 * Rule of law in the international legal order