EDUC 448 - Rule of Law & Limited Government - Report

Added on - Mar 2020

EDUC 448 - The given statement: Rule of Law & Limited Government essentially upholds two critical principles which form the lynchpin of modern democracies. One of these is the principle of limited government. The principle of limited government is represented in the initial part of the given statement which tends to highlight that there are three organs of the government and the power is essentially divided amongst them and the same is enforced through a written constitution that demarcates the boundaries of the three organs.

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The given statement essentially upholds two critical principles which form the lynchpin ofmodern democracies. One of these is the principle of limited government. The principle oflimited government is represented in the initial part of the given statement which tends tohighlight that there are three organs of the government and the power is essentially dividedamongst them and the same is enforced through a written constitution which clearlydemarcates the boundaries of the three organs. It is noteworthy that the proponents of limitedgovernment are not anti-government but do not believe in concentration of power whichcould potentially lead to a self-serving bias which could prove to be detrimental. As a result,different but overlapping powers are vested to various arms or organs and these are requiredto check each other’s working in order to prevent any overreach. This is also reflected in thegiven statement where it is clearly stated that the role of one branch of government must notbe performed by the other and vice versa (Fenna, Robbins and Summers, 2013).In Australia, the concept of limited government has been enacted through the separation ofpower doctrine but the same is not as stringent as observed in United States. This is becauseof the influence that the Westminster system has had on the political system owing to thecolonial roots. Further, in the Victorian Stevedoring & General Contracting Co Pty Ltd &Meakes v Dignan case, the High Court opined that the separation of power in Australiancontext is not strict as it is not practical and hence there is always a certain amount ofoverlapping. This limited government principle and corresponding separation of power is alsovisible in the Australian Constitution where a separate chapter is dedicated to each of thebranches so as to bring out the underlying utility. Additionally, in order to ensure that thevarious organs of the government tend to remain within limits, a free and independentjudiciary has been put in place (Kerr and Williams, 2003).Yet another principle which is contained in the latter part is the rule of law. This implies thatit would be law that would be supreme and the concerned individual or lawmaker. Thisconcept came into existence in 1885 when this was outlined by A.V. Dicey. Dicey associatedthree different meanings with this term. Firstly, it implies and establishes the supremacy oflaw and therefore is against any interference of arbitrary power. Secondly, rule of law alsorefers to the practice of equality before law thus establishing the supremacy of law assupposed to any individual by ensuring that no individual is above the law of the land.Thirdly, the rule of law highlighted that the constitution was essentially a product derivedfrom the "ordinary law of the land". The above interpretation of rule of law is also reflected
in the given statement where the government is supposed to be derived from law and notmen, thereby providing stability to the system (Groves, 2014).The rule of law is not mentioned explicitly in the Australian constitution and thereby oneneeds to rely on judicial commentaries to find evidence regarding the same. A pertinent casein this regard is theAustralian Communist Party v Commonwealth(1950) 83 CLR 1 at 193.In this particular case, Dixon J advocated that one of the key assumptions on which theAustralian Constitution is based is the rule of law. However, this does not necessarily implythat each and every aspect of the rule of law is entrenched in the constitution. Clarity in thisregard has not yet emerged as has been put forward by Hayne J in theKartinyeri vCommonwealth(1998) 195 CLR 337 at 381 case (Crawford, 2017).In order to explore, the interrelationship between the rule of law and the limited governmentprinciple, it is imperative to analyse the rule of law pyramid indicated below.

The conclusion of this report is - certain improvements that are especially required at the state level to increase the credibility of the state laws and to ensure that rule of law is established not only in letter but in spirit. Besides, the judicial review power available to the judiciary mustn't be diluted while at the same time in name of judicial activism must not be abused.

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