What Makes up the Contemporary Rule of Law?

The Rule of Law Nowadays

To analyse this, we’ll take a look at three different sources of law (specifically in the United Kingdom due to the origin of the book).

Statute Law (Parliament-enacted law)

In recent decades, an issue has arisen to the attention of the judges of the United Kingdom. What appears to be the issue, is the volume and formulation of the country’s legislature. A large amount of legislation is produced and pushed through Parliament in a relatively short period of time, resulting in confusion amongst judges and legal personnel. The other problem is that the legislation that is enacted is written in a complicated way that even professionals have a hard time understanding at times, not to mention the common folk.

A case to illustrate:

• In 2007 an offender was accused of smuggling tobacco and pleaded guilty (admitted guilt). The court ruled under a 1992 provision, under which the person was liable to pay 66,120₤ or serve 20 months in prison.

• The offender appealed. The Court of Appeal almost confirmed the original verdict.

• Just in time, the personnel found out that the 1992 provision no longer applies to tobacco because of a 2001 set of regulations. None of the legal personnel knew of this change. In this case, however, they were not at fault. Later, they allowed the appeal and altered the verdict and sentence according to the 2001 regulations.

• The problem, they said, is that there is no central database for statute law, where one could use hyperlinks to find all the legislation on a certain topic.

Common Law (Judge-created law)

Even though judges themselves complain about the over-complexity and disorganisation of the law, they at times add to it with common law. As common law is the law made by judges, and is created on a case-by-case basis, it may be crafted in a lengthy, elaborate and prolix way, thus making it more inaccessible.

Most judgements are crafted by 1 judge. In the case of Divisional Court, there are 2, Court of Appeal - 3, and finally if the case comes before the House of Lords, it is most often 5 judges (at times, 7 or 9). Each judge gives an independent, and different, judgement. Because of this, the more judges there are, the more complex and inaccessible the final judgement becomes.

Judges have the opportunity to influence law in ways some may find difficult to grasp. It does not mean that judges may rewrite existing law, create new offences on the spot or decriminalise other acts. This would go against several of the most fundamental principles of law. For example, they cannot create new offences, because a person can only be punished for an act that was already an offence at the time they’d committed it.

So in what way do judges change the law? They may influence future decisions of other judges with their own or impact the severity of the punishment. They may only alter it in a way that is predictable, does not make the law inaccessible or advantageous to certain groups of people. In this way, the rule of law is preserved.

European Union Law

Here I’m going to include a note. Since this book was written and published before the UK left the EU, European Union Law is included in its content. As the UK is no longer part of the EU, these laws are not part of the country's legislation anymore. I still decided to include them to not leave out parts of the book. Simply keep in mind that these laws are not applicable to the UK anymore.

When a country joins a union like the European Union, it binds itself, among other things, to abide by the law of the Union. When the UK joined the EU (or the Common Market, as it was called back then), it promised to comply with the treaties, regulations, legislative, directives and the decisions of the European Court. This legislation became a part of the legislation the courts in the UK had to enforce.

If a national court is confronted with a question that is related to any of the EU law, it may, and it frequently does, ask the European Court for advice. This doesn’t mean the case is transferred to the European Court, it merely provides its judgement on the question. However, the final judgement must conform to EU law.

* Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*

*All excerpts are taken from Tomas Henry Bingham (2011). The rule of law. London: Penguin Books.*