The US constitution of 1787 incorporates the doctrine of SOP with a system of checks and

balances Institution Power Personnel Control Congress Power to make laws Elected
Presidential veto; SC review of validity representatives President Execs Elected. Cannot be
Senate ratification necessary for cabinet and a member of diplomatic appointments and
treaties; judicial congress review, impeachment by removal by congress Supreme court
Judicial power Appointed by Impeachment by congress president with senate ratification
The UK system effects only a partial separation of power Institution Parliament Power Make
laws Executive council (cabinet) Executive power The courts Judicial power Personnel
Representative elected to lower house. Elected or appointed to upper house Ministers
appointed by the crown with the support of the lower house. Must be members of the
parliament Judges appointed by the execs Control Royal assent supervision and/or expulsion
by the house Maintain support of the lower house. Parliamentary and judicial review Superior
court justices removal by the crown on an address from both houses on certain grounds 1.5
Rule of law No man is punishable or can be lawfully made to suffer in body or goods
except for a distinct breach of law No man is above the law Brian Z Tamanaha, on the rule
of law: history, politics and theory Formal views o Much more concerned with laws being
formed with formal process o Demand parliament to create law with formal process 4 A
restriction on arbitrary powers Substantive views o It is not enough that laws are passed
with formal process o That the law comport with justice or moral principle (eg. Human
rights) o Making value judgement Highlights the cultural and societal attitudes to
constraints on power beyond the institutional setting Hayek: rule of law will not prevail
unless it forms part of the moral tradition of the community AV Dicey, introduction to the
study of the constitution o 1. Absolute supremacy or predominance of regular law as opposed
to the influence of arbitrary power 2. Equality before the law, or the equal subjection of all
classes to the ordinary law 3. People have faith in the common law, ingrained in the culture
Dicey does not look at the moral consequences of the application that everyone is subjected
to law View on diceys formal account of the rule of law and valorisation of parliamentary
sovereignty and what elements of the ROL do these authors identify WI Jennings, The law
and the constitution- substantial, identified the tendency of most other systems aspiring to
the rule of law to incorporate more substantive elements of constitutionalism, access to law
and all under the law Julius Stone, Social dimensions of Law and justice- substantial,
emphasised on the importance of shared ethical convictions about the appropriate limits on
the exercise of power, an ethical rather than merely a legal doctrine this substantive
reference imports both a minimal justness of rules, and a dynamic responsiveness of
substantive law to the needs of the social and economic development rule of law is not a
mere national legal doctrine and there must be equal application and organisational and
procedural safeguards Not only under coercion but with a sense of ethical obligation It is
artificial and confused to juxtapose the rule of law and the sanctity of human rights Formal
aspects are relevant but no less important are the substantive contents of law International
commission of jurists, the rule of law in a free society- substantial The principles,
institutions and procedures, not always identical, but broadly similarto protect the
individual from arbitrary government and to enable him to enjoy the dignity of men. Sir
Ninian Stephen, the rule of law- substantial, there should be four cardinal principles of the
rule of law Government should be under law Law, judges and lawyers alike, should be
independent of and uninfluenced by government Ready access to the courts of law It
should be certain, general and equal in its operation.