Principles of Public Law

The Rule of Law

Everyone is subject to the law and no one is exempt from it. The legal theorist Dicey defined three arms of the rule of law:
1	The law is supreme over arbitrary power
2	Everyone is subject to the law, regardless of their position
3	Rights come from common law rather than the constitution

Magna Carta signed by the King in 1215 to state that the King is subject to the rule of law and define certain freedoms of men
Conflicts happened between Kings (who thought they have the divine right of kings/royal prerogative, common law and the parliament
Glorious Revolution involved overthrow of the King and replacement by another who assented to the Bill of Rights (1688), placing the King below common law and Parliament

Doctrine of Precedent	Judges make law through cases – courts must apply the rulings of previous cases where facts are the same and are bound to do so if from a higher court. Follow, apply (some reasonable difference) or distinguish
Ratio Decedendi
Obiter Dictum
Principle of legality	If Parliament wants to abrogate fundamental rights, it has to expressly state that

Federation – Power is divided between federal and state governments
Constitutionalism – Government must be limited by rules
Representative Democracy – The electorate votes for representatives who make laws in Parliament. However, democracy is a blunt instrument with representatives elected every 4 years.
Common Law –
1. System of law (as opposed to civil and customary law)
2. Judge-made law
3. Law as opposed to equity

Separation of Powers – Separation between parliament, executive and judiciary. Implied in first three chapters of the constitution
Parliamentary Sovereignty – Parliament can make or unmake any law
Judicial Independence – Judges are free to exercise their power without interference from parliament or executive
Responsible Government –Parliamentarians are responsible for their actions (to their party and the electorate)
Division of Powers –Division of power between federal and state levels
Bicameralism –Two houses of Parliament (lower and upper) for checks and balances

Natural Law	Law comes from the natural order of things, reflects morality
Positivism	Law is derived from man-made rules, independent of what is right and wrong. Law can be traced back to a grund norm (norm generally accepted by society)
Formalism	Law is applied based on precedent without influence from the values of the judge
Realism	Social and public interest factor into the law