The Rule of Law Essay
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The rule of law is a difficult concept to grasp and proves elusive to substantive definition. However, the following work considers the attempts of various social and legal theorists to define the concept and pertinent authorities are considered. Attitudes and emphasis as to the exact shape, form and content of the rule of law differ quite widely depending on the socio-political perspective and views of respective commentators (Slapper and Kelly, 2009, p16), although there are common themes that are almost universally adopted. The conclusions to this work endeavour to consolidate thinking on the rule of law in order to address the question posed in the title, which is at first sight a deceptively simple one.
The rule of law
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Slapper and Kelly postulate that:
“the ‘rule of law’ represents a symbolic ideal against which the proponents of widely divergent political persuasions measures and criticise the shortcomings of contemporary State practice.” (Slapper and Kelly, 2009, p15)
These commentators concede that the concept ‘lacks precision’ and that its meaning changes over time. Noted legal philosopher Joseph Raz accepted the necessity for State intervention in society and suggests that the rule of law is essentially a means of controlling, limiting and shaping the exercise of discretion in this intervention, rather than seeking to abolish it entirely (Raz, 1977, p195). Raz clearly appreciated the risks associated with the arbitrary and uncontrolled exercise of discretionary power and envisaged the principle of the rule of law as the primary safeguard against that threat.
Many other writers appear to share the opinion expressed by Raz that the raison d’être of the rule of law is to control the exercise of discretion, including Dicey, Hayek and Thompson, and to a lesser extent Unger and Weber. Dicey, for example, in his highly influential magnum opus, An Introduction to the Study of the Law of the Constitution, suggested that the rule of law is composed of three distinct and specific, but indivisible elements (Dicey, 1885, p179-201). These are:
1. An absence of arbitrary power in the hands of the State; 2. The supremacy of ordinary
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