The common law is the unwritten law of England originated in the 12th century and is now practised in England and Wales and most of the former English colonies. We can define common law as a "creation and refinement of law in the course of judicial decisions" (Slapper and Kelly, p. 529), as opposed to statute law produced by the Parliament. The common law operates on the basis of the rule of law – constitutional principle embedded in the Acts of Parliament such as Human Rights Act 1998 and Constitutional Reform Act 2005 as well as in international Acts such as European Convention of the Human Rights 1950. Although there is no clear definition of the rule of law in English statutes, the concept is often described in terms of Professor A. V. Dicey's interpretations provided in his famous book Introduction to the Study of the Law of the Constitution (1885). Dicey (in Bingham, 2008) offers three meanings of the rule of law that are the supremacy of law over arbitrary power; equality before the law; and protection of individual rights by law. In the modern time, the doctrine of the rule of law has been developed further by various academics and scholars, notably Joseph Raz (1979), a political philosopher and a legal positivist, who introduced a "formal" interpretation of the rule of law. Raz's concept emphasises the importance of clear rules and open procedures to minimise the dangers of arbitrary power and to guide individual behaviour (1979, p. 214). According to Raz (1979, p. 217), it is the courts' function to ensure that fundamental rights of individuals are protected from the unlawful use of government's power. However, opponents of this view, such as Professor Vernon Bogdanor (in Bingham, 2008, p. 224), stress the power of another constitutional principle that is parliamentary sovereignty, which basically prohibits the courts from inquiring into or overwriting rules and decisions made by the Parliament. This leads critics to question whether the English legal system indeed secures individuals from unlawful use of power and if it does not, then the principle of the rule of law do not reflect in common law in England and Wales.
This essay aims to examine the power of the rule of law in the English legal system. For the purpose of this work, I will explain the concept in terms of principles offered by Joseph Raz. I will then evaluate whether the common law meets the formal requirements of Raz's concept. Further, I will define the principle of parliamentary sovereignty to determine its constitutional power over that of the rule of law. I will conclude by stating that although the rule of law may seem to face challenges from both structural and constitutional sides, the common law has sufficient legal power to exercise it and to ensure the protection of the principle.
A formal understanding of the rule of law relies on Joseph Raz's idea that "if the law is to be obeyed, it must be capable of guiding the behaviour of its subject [so that] they can find out what it is and act on it" (1979, p. 214). Raz provides eight fundamental principles of the rule of law that aims to inform an individual about how the rule of law operates and which conditions are required in order to exercise it. The eight principles are prospective, open and clear laws; laws that are relatively stable (not changing); making of laws guided by open, stable and clear rules; the independence of the judiciary; the principles of natural justice; the courts' power to review the implementation of other principles; easily accessible courts and the discretion of the crime-preventing agencies should not be allowed to pervert the law (p. 214). We may see that these principles are generally formal requirements and that they do not concern with the content of law as the scholar emphasises the importance of existing prospective laws that would instruct judicial institutions and guide them through administrative processes (p. 223) as a way to secure principles of the rule of law.
However, the Acts of Parliament are not designed to provide such guidance and the absence of written constitution in the UK that would have served such purpose means that courts must make their decisions on the basis of their own interpretations of the Acts. Such mechanism may result in confusion, as each judicial decision is a product of individual interpretation. But Alexander and Sherwin (2009) defend the system by claiming that although the vagueness of the Acts of Parliament may result in some interpretational error, the courts should apply previously established rules to present cases as a practice of consistent decision making, which generates expectations of consistency and serves to reduce such error (p. 29). Moreover, the fact that courts rely on previous decisions enables people to expect similar decisions in future so that they can adjust their behaviour according to these expectations (p. 28). Therefore, we may say that despite the absence of written constitution and laws, the common law aims to provide as much clarity and predictability as it is possible and therefore, exercises the principles of the rule of law.
Furthermore, critics of a binding precedent mechanism may claim that reliance on previous decisions does not make the system efficient at resolving current cases. This, however, is not accurate, as according to Practice Statement (Judicial Precedent) [1966], in order to avoid any injustice resulted from application of previous decisions to an individual case, the judges "while treating former decisions… as normally binding, to depart from a previous decision [only] when it appears right to do so" (Lord Gardiner, 1966). This means that the common law does not operate mechanically and instead, it recognises the importance of individual implications of a certain case that require attentive consideration. In this sense, the common law protects individual rights and provides the fair procedure in relation to each decision. This, in respect, complies with principles of the rule of law.
Nevertheless, the rule of law faces a challenge by another vital component of the English legal system that is parliamentary sovereignty. In the view of Professor Vernon Bogdanor (Bingham, 2010, p. ?), a conflict between constitutional principles of parliamentary sovereignty and the rule of law is not resolvable, and may eventually lead to a constitutional crisis. Dicey (Bingham, 2008, p. 227) in his writings described the power of parliamentary sovereignty as follows: "Parliament has in the United Kingdom, no legislative superior. The courts have no inherent powers to invalidate, strike down, supersede or disregard the provisions of an unambiguous statute". Supremacy of the Parliament's power has been confirmed by the Court of Queen's Bench 1872, which states "there is no judicial body in the country by which the validity of an act of parliament could be questioned". It follows that it is in Parliament's power to legislate laws unconstitutionally and therefore infringe any fundamental rights, or any obligation of the international law (Bingham, p. 227). In such a way, parliamentary sovereignty and the rule of law are incompatible, both internationally and internally (Professor Sir Francis Jacobs in Bingham, 2010, p. 224) and the two constitutional principles cannot coexist on equal terms.
However, Professor Allan (Bingham, 2008, p. 161) rejects this notion of incompatibility, instead asserting that sovereign power of the Parliament is not absolute and in a sense that in certain cases the judges may "without the authority of Parliament, hold a statute to be invalid and of no effect because contrary to a higher, fundamental, law or to the rule of itself". This means that when the Parliament is using its power unlawfully, the courts have the ability to initiate a judicial review to hold the Parliament accountable before the public. Lord Steyn in R (Jackson) v Attorney General [2005] case that challenged the validity of the Hunting Act 2004, claims "the classic account given by Dicey of the doctrine of supremacy of Parliament… can now be seen to be out of place in the modern United Kingdom… it is not unthinkable that circumstances may arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism". Indeed, if we consider the Merchant Shipping Act 1988 and the Employment Protection (Consolidation) Act 1978, we may see that the process in both cases involved the courts' invalidation of parliamentary laws. In the Anisminic case, where the Parliament ruled that no application to the Foreign Compensation Commission under the Foreign Compensation Act shall not be called in question in any court of law, the judges held that this ruling did not prevent the courts from reviewing this decision (Anisminic Ltd v Foreign Compensation Commission, [1968]). Moreover, as the rule of law is present international law, the sovereign power of the Parliament does not have the legal authority to make any changes to or legislate laws that conflict with international acts and treaties. For example, in the case of Merchant Shipping Act 1988, the Parliament did not have the ability to exercise its sovereign power as the Act conflicted with European Community Act. These and many other examples of cases alike provide sufficient evidence to suggest that although Parliament is still considered as a pre-eminent legal body in the English law, its sovereign power does not go beyond the limits of the rule of law.
The common law in England and Wales is unique because although there is no clear definition of the rule of law, its principles are embedded in the legal system and the courts and the Parliament comply with these principles. Although parliamentary sovereignty theoretically has the power to separate courts from the legislature, the courts may hold the Parliament accountable in the case of unlawful use of such power. In the light of this, we may conclude that the rule of law is not incompatible with the common law but it is a solid foundation of the whole legal system.