Rule of Law Constitutional Law. © Copyright 2013 Tolga R Yalkin.

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Presentation transcript:

Rule of Law Constitutional Law

© Copyright 2013 Tolga R Yalkin

What do we want to know? Where has the rule of law been invoked successfully and unsuccessfully? What does the rule of law, as a philosophical concept, include? © Copyright 2013 Tolga R Yalkin

Aristotle, 384–322 BC © Copyright 2013 Tolga R Yalkin The law should govern

AV Dicey, 1885 © Copyright 2013 Tolga R Yalkin No one punished or made to suffer except for breach of law provided in ordinary court. No one above the law and everyone equal before law regardless of social, economic, or political status. Law incudes judicial decisions, not just statutes.

Joseph Raz, 1977 © Copyright 2013 Tolga R Yalkin Laws prospective not retrospective Laws stable, not changed frequently Rules for making laws clear Judiciary independent Principles of natural justice Judicial review Courts accessible and no one denied justice Prosecutorial discretion exercised consistent with the rule of law

McLachlin CJ, 1992 No private lawlessness Government under law Laws ordinary certain, general, equal Mechanisms ensure law reflects social values Effective and impartial law enforcement Administrative review Judicial independence Legal representation Principles of natural justice Accessibility of courts Impartial and honest law enforcement Attitude of legality © Copyright 2013 Tolga R Yalkin

Procedural Rules for making laws clear Principles of natural justice Courts accessible and no one denied justice Substantive Laws ordinary certain, general, equal © Copyright 2013 Tolga R Yalkin

Confirmed Right of access to courts (NAPE) Law supreme over government and private persons (Roncarelli) Positive set of laws must be maintained (Manitoba Language Rights) Exercise of public power must be authorized by law (Provincial Judges) Rejected © Copyright 2013 Tolga R Yalkin Absolute right to counsel (Christie) Right of appeal from admin decisions (Vanguard) Prohibition on extinguishing contractual rights (Bacon) Laws be prospective not retrospective, be general in nature, not confer special privileges on gov’t except where necessary (Imperial Tobacco) Right to trail according to existing civil procedure (Imperial Tobacco)

Recap Know philosophical underpinnings and decided cases If the rule of law is invoked in same way as a case that has been decided, apply that case. Anticipate new ways in which the rule of law might be invoked, and determine, based on the decided cases, whether you think it would be accepted by the courts. © Copyright 2013 Tolga R Yalkin

END © Copyright 2013 Tolga R Yalkin

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