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'basis upon which the rule of law were formed'; Magna Carta and Bill of Rights


funk_laroon 3 / 1  
Apr 14, 2007   #1
Just wondering if someone can look over, proof read or give feedback thanks

Introduction
It is evident that in today's society, the rule of law and its principles are apparent throughout the judicial process. Documents such as the Magna Carta and Bill of Rights laid a basis upon which the rule of law and its principles were formed. These principles expressed a legal doctrine of fundamental importance, which encouraged societies to conform to law and governments to operate through them. Much importance is therefore placed on the history of the rule of law and the certain documents that influenced its enforcement.

Historical Influence
With the signing of the Magna Carta in 1215 came the inclusion of clauses designed to restrain the insatiable rights of the monarch and in response provide a guarantee of certain freedoms . In 1688 during the Glorious Revolution, the Bill of rights was signed by William and Mary of Orange. This process transferred supremacy from the monarch to the parliament, to whom supreme law making authority was given. It was these provisions that led to the foundation of a community governed by the rule of law.

Rule of Law
Values, principles and rules that underlie our legal system describe the rule of law. It acts as a mechanism for protecting, enforcing and recognising rights. According to Albert Venn Dicey, the principles of the rule of law are established upon three basic tenets . Firstly, the rights of individuals are determined by legal rules and not the arbitrary actions of authorities, thus, there is a conception for law and order within a community, rather than warfare and anarchy . Secondly, all citizens regardless of their position in society should be equally subject to the law, together with the government, and finally, that punishment cannot be implemented unless the courts decide a breach of law has occurred.

In order to enforce that notion of being ruled equally and with governments having restraints placed on their control, certain legal requirements are crucial to its operation. Summarised into three categories, formal, procedural and constitutional, theses legalities form a foundation to which the rule of law is governed by. Formal legalities represent the form that law should take in that it is general, practical, and clear. This is evident in the Magna Carta where barons sought to enforce custom, in that they wanted the law to be certain and stable. Procedural legalities entail due process with emphasis placed on fair criminal procedure and access to courts; with the law not only enforced but society being treated equally to it.

This is apparent in the Bill of Rights were parliament desired fair criminal procedure, and in the Magna Carta, were barons demanded access to justice. In respect to constitutional legality, it depicts that Government is subject to law. This is shown through the entrenched provisions, independent judiciary and separation of powers. Whereby, the judiciary must be a sperate organisation to the legislative and executive, with their role being to keep other branches of government in order with an aim to create an equality of power, where no branch is more powerful than the other . As influenced by the Magna Carta, where the barons sought to limit the power of the king's interference, with the law making process and strive to develop independent courts. In respect to the bill of rights, parliament sought to exclude the king from law-making functions furthermore making him subject to the law.

Judicial Process

A fundamental characteristic of the separation of powers doctrine is the independency of the judiciary to guarantee that legal judgments can be made based entirely on the law without persuasion or inducement by other powers. Individual liberties are an integral element that depends upon the rule of law, therefore the judiciary's responsibility is to guarantee that government power is not definite. They also provide a measure of protection that ensures Parliament legislation is lawful, and thus if it is not, then it may be subject to review.

Significant cases such as Entick v Carrington have demonstrated the authority and independence of the judiciary in controlling the executive function and enforcing the separation of powers. It raised further issues as the court held that executive practice does not amount to law, furthermore, if procedural requirements are not followed, the actions which result are unlawful. This is a clear example where the court upheld the rule of law. In the case of Chu Kheng Lim v Minister for Immigration and Australian Communist Party v The Commonwealth the courts confirmed the rule of laws ability to place limitations on subjective government power. In addition the courts demonstrated how the rule of law might be used to protect human rights and freedoms. Liyanage v R and Kable v DPP examine the courts power further as it upheld that laws must be general in nature and not subjective.

EF_Team2 1 / 1,708  
Apr 14, 2007   #2
Greetings!

I'd be happy to give you some feedback on your excellent essay!

It is evident that in today's society, the rule of law and its principles are apparent throughout the judicial process. - "It is evident...its principles are apparent" is redundant; I'd get rid of "It is evident" and begin with "In today's society..."

"...and finally, that punishment cannot be implemented unless the courts decide a breach of law has occurred." - You gave each of the first two points their own sentence. For balance, I'd give this third point its own as well: "Finally, ..."

"theses legalities form a foundation to which the rule of law is governed by." - "theses is probaby a typo. Better sentence construction would be "these legalities form a foundation by which the rule of law is governed."

"Procedural legalities entail due process with emphasis placed on fair criminal procedure and access to courts; with the law not only enforced but society being treated equally to it." - Make the semicolon a comma (because the second clause cannot stand on its own). I think you mean "being treated equally by it."

"This is apparent in the Bill of Rights were parliament desired fair criminal procedure, and in the Magna Carta, were barons demanded access to justice." - "where" not "were"

"in order with an aim to create" - this is redundant; say either "in order to" or "with an aim to"

"the judiciary's responsibility is to guarantee that government power is not definite." - Are you sure you mean "defiinite"? Perhaps "infinite"?

In the cases of Chu Kheng Lim v. Minister for Immigration and Australian Communist Party v. The Commonwealth, the courts confirmed the rule of law's ability to place limitations on subjective government power. - I added some punctuation; normally the abbreviation for 'versus' has a period after it: v.

Very good work!

Thanks,

Sarah, EssayForum.


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