Unformatted text preview: e of law protects citizens from the arbitrary use of overly broad governmental power Jennifer C. Root Akron Tax Journal 2000 A. V. Dicey, in his treatise The Law of the Constitution, n16 sets forth three fundamental characteristics of the rule of law. n17 First, the rule of law is served [*72] when there is a predominance of regular law over the discretion of individuals within the government. n18 This proposition stands for the general rule that man should be governed by rules and not by the judgement of a single person. n19 Thus, arbitrariness, prerogative, and wide discretionary authority must be minimized in order to have a legal system in conformity with the rule of law. n20 Second, the rule of law demands the equal treatment of those that come before the law. n21 This proposition stands not only for the equal treatment of similarly situated individuals by the law, but also stands for the proposition that all classes of citizens must be subject to the law. n22 Third, the rule of law maintains that rules are not the source of individuals' rights but instead are the consequence of individuals' rights as defined by the courts. n23 This proposition has been argued to stand for the principles of granting limited power to the government, the separation of powers between the branches of government, and a full utilization of judicial review. n24 Therefore, the rule of law is seen as a mechanism to restrain discretionary governmental action and protect citizens from the arbitrary use of overly broad governmental power. LAW ENFORCES HUMAN AND SOCIAL VALUES F.C. DeCoste, Professor of Law, University of Alberta (Oxford: Oxford University Press, 2001 Allan dissents from both Millian prescriptions. "The law," he says, "need not be confined to the protection of individuals from 'harm,' narrowly conceived, but may properly seek to secure and enforce a wide range of human and social values." n207 This must be so, he thinks, because "whether or not conduct constitutes 'harm' (either to the actor or to someone else) and may, therefore,...
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This document was uploaded on 11/20/2013.
- Fall '13