Features of the Rule of Law - Questions of Legal Right and Liability Should Ordinarily Be Resolved by Application of the Law

Features of the Rule of Law - Questions of Legal Right and Liability Should Ordinarily Be Resolved by Application of the Law

QUESTIONS OF LEGAL RIGHT AND LIABILITY SHOULD ORDINARILY BE RESOLVED BY APPLICATION OF THE LAW AND NOT THE EXERCISE OF DISCRETION

Dicey’s objective was to limit arbitrariness in decision-making. The meaning of the ROL is that officials should be bound by strict rules in their action, without being free to exercise discretionary powers.

The rules do not need to be found necessarily in a statute: what matters is that decisions should be based on stated criteria and that they should be amenable to legal challenge.

However, there should be exceptions. Exceptional cases need special treatment: the important is that judges and other actors are not free to indulge their personal preferences.

Even in cases in which discretion is needed, rules have grown up to direct the exercise of this discretion. In many cases it is said that judges (or ministers) "may" do something: it means that they are not forced to do it, but there are strict rules that have to be observed in determining the discretionary action.