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The Sovereignty of LawFreedom, Constitution and Common Law$
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T.R.S. Allan

Print publication date: 2013

Print ISBN-13: 9780199685066

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199685066.001.0001

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The Rule of Law: Freedom, Law, and Justice

The Rule of Law: Freedom, Law, and Justice

(p.88) 3 The Rule of Law: Freedom, Law, and Justice
The Sovereignty of Law

T. R. S. Allan

Oxford University Press

Constitutional law and practice aspire to conform to the rule of law, conceived as a fundamental ideal linked to ideals of liberty and justice. The special value of legality is best understood as compliance with the conditions that secure liberty as independence. The writings of Dicey, Hayek, and Locke can be seen as contributions to that republican notion of freedom. It is an ideal that extends beyond formal equality to embrace a more substantive conception of equal citizenship: the equal protection of the law. A bill of attainder cannot qualify as law; nor can measures based on irrational (unjustifiable) discrimination. The rule of law is a bulwark against arbitrary power, from whatever source it arises; it invokes and informs a moral conception of law. Since administrative discretion threatens liberty as independence it must be checked by judicial review, enforcing rigorous standards of due process.

Keywords:   legality, liberty as independence, arbitrary power, republican freedom, equal protection of the law, due process, bill of attainder, Dicey, Hayek, Locke

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