Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 - Essay Example

Download file to see previous pages 8). Cane (2011, p. 15) explains that as a legal maxim, the rule of law implies that decisions made by the government should be based on the existing legal principles; it insists that law should govern the society. The proponents of the rule of law argue that it is the foundation of society’s order and freedom since it treats all citizens as equals and therefore none is above the law, not even the rulers. In broader terms, the rule of law implies that the state should subject its citizenry to the laws that were publicly promulgated, no one within a given state should be above the law, and legislative function and the adjudicative functions of the state should be separate from each other. These terms are essential in ensuring that the rule of law is adhered to, fundamental rights of the citizenry are protected, and the powers of the government are limited. Pollard, Parpworth and Hughes (2007, p. 11) argue that contemporary constitutional democracy could be impossible in the absence of the rule of law. However, in some cases democracy and the rule of law are not in harmony. It is against the background of the rule of law that this discussion will focus on it and its main features with specific reference to Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. An English Law Commentary on this case will attempt to bring the concept of rule of law and its main features into focus with the aim of enhancing understanding of the concept. Since the time the phrase “rule of law” was coined, there has been divergence of understandings with people giving varying explanations of what the phrase really is and what it fundamentally implies. Ranjan (2011, p. 22) notes that there are two divergent views regarding the phrase, majorly. The first one is that it goes beyond legal framework and includes substantive rights that are derived from, or based on the rule of law. The second view is that the rule of law does not focus on how just the law is but rather defines certain procedural characteristics that an existing legal framework should have so as to comply with the rule of law (Ranjan, 2011, p. 23). The divergence of understandings notwithstanding, there are key aspects of the rule of law that are agreed upon by the majority of people and entities; it is agreeable that rule of law is a governance principle in which all entities, persons, and institutions, whether private or public are accountable to publicly promulgated laws which are in conformity with international human rights standards, independently adjudicated, and enforced equally. In addition, it is agreeable that under the rule of law everyone is equal before the law, there is separation of powers, there is legal certainty, supremacy of law principles are adhered to, there is participation in decision- making, legal and procedural transparency principle is adhered to (Cane, 2011, p. 16). The aspects of the rule of law described above are in general terms and only give the general features of the concept. So, what are the main features of the rule of law? As has been noted, people have different interpretations about the concept of rule of law (Ranjan, 2011, p. 29). However, this does not mean that the fundamental features of the concept has been lost; actually, these different interpretations are derived from the main features of the concept. In modern times, the concept of the rule of law and its features was propounded by a British Philosopher and Jurist, Albert Dicey, and that is why it is not uncommon to find rule of law ...Download file to see next pages Read More