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Terror Detentions and the Rule of LawUS and UK Perspectives$
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Robert H. Wagstaff

Print publication date: 2013

Print ISBN-13: 9780199301553

Published to Oxford Scholarship Online: April 2014

DOI: 10.1093/acprof:oso/9780199301553.001.0001

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The Rule of Law

The Rule of Law

Chapter:
(p.114) 5 The Rule of Law
Source:
Terror Detentions and the Rule of Law
Author(s):

Robert H. Wagstaff

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199301553.003.0005

This chapter explores what is meant by the Rule of Law from AV Dicey to Tom Bingham and Ronald Dworkin. Much has been said about the rule of law since September 11, 2001,usually disingenuously by those who claim they are defending freedom. The Rule of Law is the implicit basis of the Law Lords’ four Belmarsh-based decisions and the four US Supreme Court Guantánamo decisions. These decisions manifest the meaning and history of the due process of law, fair trial, access to the courts, equality, habeas corpus and separation of powers - all core touchstones of the Rule of Law. Tom Bingham’s central premise defining the Rule of Law is that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’. This chapter explores the historical origins of the Rule of Law (Magna Carta) and separation of powers(Aristotle) and modern day developments (Constitutional Reform Act 2005); the writings of Lon Fuller, Joseph Raz, Jeffery Jowell, Jeremy Waldron, John Locke and Thomas Paine with regard to the rule of law; and the Human Rights Act, Parliamentary sovereignty, and fundamental rights today in the UK. A new and truly independent Supreme Court has emerged in the UK and the Rule of Law is the new sovereign.

Keywords:   Rule of Law, parliamentary sovereignty, Magna Carta, separation of powers, habeas corpus, Tom Bingham, Ronald Dworkin, judicial independence

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