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Contents
1. A comparison of the natural law and positivist
approaches to the question what is law?
2. An Analysis of how the Justice and Security Act
2013 is accused of offending the rule of law
3. The history and tradition of Afghanistan has led to a
complex set of overlapping and conflicting bodies
of law and legal institutions
4. The issues surrounding the judicial interpretation of
the word family in Fitzpatrick v Sterling Housing
Association Ltd.
5. Race was a major factor in the failure of the
Criminal Justice System to deliver justice to the
family of Stephen Lawrence
Bibliography.

A comparison of the natural law and positivist approaches to the question what is
law?

Natural Law and Legal Positivism are the two leading theories of law. They provide
contrasting definitions of law. The older of the two, The Natural Law theory believes
that the laws of man are only valid where they conform to a higher or divine set of
morals. St. Thomas Aquinas, an early British proponent of the theory, wrote that the
law is, nothing else than an ordinance of reason for the common good. 1 Further,
Aquinas promoted the words of St. Augustine that an unjust law is no law at all. This
simple principle is the basis of of the Natural theory of law. It was expanded upon to
say that moral individuals had a duty to disobey unjust laws so that they may become
obsolete, unenforceable and lastly, repealed. Martin Luther King Jr. encouraged his
supporters to do this in his Letter from a Birmingham Jail in 1963. He declared that,
One has not only a legal but a moral responsibility to obey just laws. Conversely, one
has a moral responsibility to disobey unjust laws. 2 The civil rights movement headed
by King is a prime example of this principle in action. Rosa Parks powerfully
demonstrated the absurdity of racial segregation when she was arrested for the
crime of refusing to give up her seat on a bus to a white man in 1955.
Natural Lawyer John Locke also placed duties upon law makers. He believed
that it was common moral ground that no one should injure another in their life, health
liberty or possessions and that this should be protected by law. In the second half of
his book The Two Treatises of Government, he put forward that the object of any law
should be, not to abolish or restrain, but to preserve and enlarge freedom, 3 therefore
those laws that do the two former things but not the latter, are invalid. This is pertinent
to laws which are created to control and subdue a certain group without protecting the
freedoms of any individual. An example of such a body laws would be the laws on
Homosexuality introduced by Uganda in February 2014. Because consenting

Aquinas, St. T,Summa Theologiae Pt. 2 Q. 2, Art. 4. Published in: Selected Political Writings, tr..
Dawson, J. G ed. P. DEntrves (Blackwell, 1970; reprint of 1959 edn).
2
King, M L. Available at http://abacus.bates.edu/admin/offices/dos/mlk/letter.html 1/2/2014
3
Locke, J Two Treatises of Government Ch. VI, sec. 57 Edited,
with an Introduction, By C.B. McPherson, Hackett Publishing Company, Indianapolis and Cambridge,
1980

Homosexual activity is victimless, it will be mostly unreported. This will make enforcing
the laws almost impossible.
Lon Fuller led the transition away from the theological origins of classical
Natural Law theory in the 20th Century. Fullers Procedural Naturalism was concerned
not with the substance of law but the way it is created. What was crucial, according to
Fuller, was that potential laws be independently scrutinised and evaluated before they
were enacted, because, the effect will generally be to pull those decisions towards
goodness.4 He identified eight conditions that laws must satisfy. Laws should be
applicable to all, widely accessible, consistent, lasting, enforced as worded and
citizens must be capable of obeying them.5
The theory formed to challenge the Natural Law Theory, Legal Positivism. The theory,
in its earliest form, John Austins Command Theory, defined law as the general
commands of an unfettered sovereign backed by a sanction 6. The sovereign must be
habitually obeyed and must have unrestrained power to make law. The sanction must
be regularly imposed for the law to retain validity. Positivists believe that laws made in
this way are legitimate regardless of their moral acceptability. For example, the
Nuremburg laws in Nazi Germany would be legitimate to positivists as it was imparted
by the sovereign of the day. In contrast to Natural Lawyers, the fact they needlessly
impinged upon the inalienable rights of Jewish citizens would make them void.
Professor Hart, a protg of Austin, was critical of his Command Theory. He
highlighted the absurdity that if the theory were true, an armed bank robbers
demands for money would be legitimate law. He wrote that the content, origin and
range were key to defining what the law was. He rejected the notion of an unfettered
Sovereign. No efficacious legal system could exist without secondary rules of
recognition, change and adjudication to bind the Sovereign 7. Contained in this is the
acknowledgement that people cannot be made to obey through threats alone. When
they lose all respect for the rule of law, the rule of law disappears. A small-scale
4

Fuller, L Positivism and Fidelity to the Law A Reply to Professor Hart (1958) 71 Harv. L. Rev.
630, 636 .
5
Fuller, Lon, Morality of Law, rev. ed. (New Haven: Yale University Press,
1969), p. 39.
6
Austin, John . The Province of Jurisprudence Determined 1832. London: John Murray.
7
H. L. A. Hart (1994) The concept of law, Oxford: Clarendon Press

example of this was seen during the London Riots in summer 2011, which began
because many people believed a man had been unlawfully executed by police,
punished without fair trial. Harts other criticism was that not all laws were prohibitive
or even commands, many merely regulate and instruct the appropriate procedure to
be followed in a circumstance. These ideas share much common ground with the
ideas of natural law exponents such as Martin Luther King.

An Analysis of how the Justice and Security Act 2013 is accused of offending the rule
of law
Lord Bingham includes the right to a fair trial, in civil as well as criminal cases,
among his 8 essential principles of the rule of law. He notes that Chapter 39 of the
Magna Carta makes no exceptions to this right for times of emergency or civil strife 8.
It is also enshrined by Article 6 of the ECHR9. The Justice and Security Act 2013 has
been accused of being contrary to the rule of law and the convention, in that it denies
some citizens a fair trial. The bill was defeated in the House of Lords and opposed
by the Labour party and many Liberal Democrat Mps. Bingham said that, Any
process which denies knowledge to a person effectively, if not actually, accused of
what is relied on against him, and thus denies him a fair opportunity to rebut it, must
arouse acute disquiet,10
The act introduced Closed Material Procedures (CMPs) to be used on the
application of a Secretary of State in cases where sensitive information relating to
national security might be given in evidence. If granted, an application will mean that
evidence brought by one party cannot be viewed by the other side or their lawyers.
Special advocates can view such evidence and may represent the interests of the
responding party, but cannot communicate with them to obtain advice. This vastly
limits their capability to represent them properly as they cannot be given any useful
information or instructions from the affected party.
The Government were compelled to pursue the legislation when the Supreme
Court ruled in 2011 that the courts had no power to order a CMP in civil
proceedings11. Within the judgement Lord Dyson states that CMPs may offend 2 of
the essential elements of a common law trial.12 Open Justice, that, trials should be
conducted and judgments given in public, was the first. He quoted Lord Haldanes
view that the principle should only be infringed where necessary not merely for
convenience13. This is so valuable because justice being seen to be done as well as
done maintains the publics respect for the rule of law. Secret Courts arouse
8

Tom Bingham, The Rule of Law, Penguin Law, 2010

Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights, as amended)(ECHR) art. 6 enacted in UK law by
S.3 The Human Rights 1998
10
Lord Bingham, The Rule of Law Lecture. 16/11/06 Centre for Public Law
11
Al Rawi and others (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34
12
Ibid. [2011] UKSC 34 (transcript) at 10
13
Scott and another v Scott [1911-13] All ER Rep 1 at 9
9

suspicion. Most believe that evil deeds are done in darkness. Additionally, where the
reasons for a conviction are secret, the public may lack awareness of how the law is
interpreted in the courts. This is a partial breach of the rule of law principle that the
law be accessible to all. Lord Drysons second principle was that trails must satisfy
the requirements of natural justice. Therefore parties should know the case and
against them including the evidence supporting it. Clearly a trial where one side can
present unchallengeable evidence cannot be a fair trial. Lord Kerr, in Al Rawi, was
unequivocal on the point that Evidence which has been insulated from challenge
may positively mislead.14
Justice Secretary Ken Clarke reassured critics of the procedure that it would
only be used where, the most highly sensitive intelligence material is involved, in
order to protect the public15. While it is true that the Act places the courts
responsible for denying inappropriate CMP applications, it is foreseeable that they
will gradually become more common as have the use of anti-terror powers. Lord
Hope expressed such concerns, warning that, The slow creep of complacency must
be resisted.16
It must, however, be acknowledged that while the right to a fair trial is a pillar
of the rule of law throughout western democracy, so too is the need for the state to
maintain certain secrets. The Public Interest Immunity (PII), which predated CMPs,
allows information pertaining to national security to be undisclosed in court
proceedings. While it provides a more balanced procedure than a CMP it can often
lead to a skewed decision because a key piece of evidence has not been presented.
Where the state is not able achieve justice which may stumble across such
information, it will be forced to manoeuvre outside of judicial remedies. It will resort to
exerting unfettered influence and pressure on individuals to achieve the same ends.
The decision to pass the Act was one that prioritised state secrets over the
long standing rights that one may hear the case against them in full and have the
opportunity to defend themselves. Furthermore, It is the most drastic deviation from
the principle of open justice to date. That is that even the person having been
decided against, cannot be told precisely, the reasons why. Therefore, CMPs do
14

Al Rawi and others v Security Service and others [2011] UKSC 34, (Transcript) at. 93
Ken Clarke, The Daily Mail 6/3/12 (http://www.dailymail.co.uk/news/article-2110721/KENNETHCLARKE-We-hear-fears-open-justice-loud-clear.html)
16
Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another
(Appellant) and one other action: [2009] UKHL 28 at para. 84.
15

offend the rule of law and should only be used as a last resort where its non-use
would result directly in loss of life.

The history and tradition of Afghanistan has led to a complex set of overlapping and
conflicting bodies of law and legal institutions

Afghanistan has historically had 3 main forms of law, the oldest, Sharia or Islamic
Law, customary law and state law. The coexistence of multiple rules of law in one
sovereign nation is an anathema to western observers who are accustomed to a
single system of law and dispute resolution effective throughout a country. However,
there exists both a geographical separation and habitual cooperation between these
codes in Afghanistan.
Sharia law is a legal system based on the Islamic scholars interpretation of
the Koran and the life of the prophet Muhammad. Sharia courts were introduced in

urban areas following the formation of Afghanistan in 1747 17. Sunni Hafi, one of five
sunni schools of sharia, is the most prevalent in Afghanistan 18. Cases are tried in a
rather unsophisticated manner by contemporary standards. They are inquisitorial. In
these proceedings there are no lawyers, no cross-examination, no doctrine of
precedent and the law is not codified19. Further, courts value witness testimony
(preferably male) far higher than forensic or other physical evidence. This is
problematic in that it can produce false positive identifications and is useless in trying
rape cases20
William Malley writes that although sharia is, subtle and complex, it was
instrumental in upholding the principles of contractual obligations during the 1980s 21.
Without it the countrys economy may have collapsed. The law was also the
dominant mode of criminal law enforcement. This gave effective crime prevention
despite unreliable enforcement. The fact that Sharia chimed with the peoples
Islamic values gave it great authority22. However the fear of draconian punishments,
which to western observers are synonymous with Sharia, may also have been the
reason for the adherence to the law.
Afghani State law draws much from Islamic Law. The1964 Constitution states
that, No law shall be repugnant to the basic principles of the sacred religion of
Islam23 and that where there is no applicable state law; Hanafi Sharia law should be
applied24. Many of the state appointed judges are also orthodox clerics. The states
role in dispute resolution was born in the early 20 th Century when the Amir, Abdul
Rahman Khan issued commandments to the nation. The constitutions of 1923, 1931
and 1964 expanded the scope of state influence over dispute resolution and the
formation of rules of conduct. It promulgated a single codified law and introduced a
trained legal profession .However, the state law failed to gain any traction beyond the
17

Ashraf Ghani (1978). Islam and StateBuilding in a Tribal Society Afghanistan: 18801901
The Making of a Constitution in Afghanistan, JA Thier - NYL Sch. L. Rev., 2006 - Available in LSE
Research Online: June 2010
19
Bill Warner, Sharia Law for Non-Muslims (A Taste of Islam) CSPI Publishing (June 6, 2010)
20
Mohammad Hashim Kamali (1998). "Punishment in Islamic Law A Critique of the Hudud Bill of
Kelantan, Malaysia". Arab Law Quarterly. Vol. 13, No. 3. pp. 203234.
21
The Rule of Law in Afghanistan: Missing in Action [2011] Edited by W Mason, pg 67
22
Thomas J. Barfield An Islamic state is a state run by good Muslims: Religion as a way of life and
not an ideology in Afghanistan in Remaking Muslim Politics: Pluralism, Contestation,
Democratization, edited by
Robert Hefner. Princeton, NJ: Princeton University Press, pp. 213-239
23
Article 64 Constitution of Afghanistan Ratified: October 1964
24
Ibid. Article 69
18

urban population centres. Rural villages were more likely to use Sharia for guidance
on correct behaviour and to resolve their dispute according to customary law
methods25.
The so-called Customary Law was dominant in mountainous rural
Afghanistan. Assemblies of respected community elders were used to resolve
disputes and make important decisions that concerned the entire community. These
Jirgas focus on 4 main areas, Hospitality, Vengence (for advances on ones women,
wealth and land), Protection of land and property and mercy to those who request
it26. An extraordinary example of observance of the latter, was where US Navy SEAL
Marcus Luttrell was recused from an ambush an nursed back to health with severe
injuries by Pashtun villagers near Sawtalo Sar.27 The main strengths of customary
hearings are that they allow both sides the opportunity to explain themselves fully
and bring the dispute to a resolution with the minimum of residual ill-feeling 28.
It is true to say that the different systems of law in Afghanistan before 2001
overlapped. However, to describe them as conflicting is misleading. The country
was far from united. It consisted of many different cultures. From the modern urban
areas to the tribal communities in rural areas along with the strict Islamic families that
live in either. Even if the state had the resources to promulgate and enforce a single
rule of law beyond the cities, they could not have created laws and procedures that
were appropriate to everyone 29. The two other forms of law unburdened the state
from having to delve into the detail of these differing cultures, freeing it to make law
prohibiting only the most dangerous and damaging acts.

25

Thomas Barfield, Afghan Customary Law and Its Relationship to Formal Judicial Institutions.
Produced for the United States Institute for Peace, 2003
26
The Yale Globalist, Vol 11 Issue 3 (2011) pg8-9, Marissa Dearing
27
Marcus Luttrell Lone Survivor: The Eyewitness Account of Operation Redwing and the Lost Heroes
of SEAL Team 10, Little, Brown, 2007
28
Jim Grant and William McCallister, Tribal Engagement: The Jirga and Shura, Small Wars Journal,
2010
29
Dr. Martin Lau, Afghanistan - Final Report on Afghanistan's Legal System and its Compatibility with
International Human Rights Standards, International Commission of Jurists (ICJ), 7 February 2003

The issues surrounding the judicial interpretation of the word family in Fitzpatrick v
Sterling Housing Association Ltd.
In the case of Fitzpatrick v Sterling Housing Association Ltd 30 in 1999 The House of
Lords examined whether a cohabiting same sex partner succeed to a tenancy upon
the death of the tenant. The case rested on the interpretation of terms in two
subsections of the Rent Act 1977. If Mr Fitzpatrick was found to be either the
spouse31 of his boyfriend of 18 years or a member of his family,32 the defendant
would have to allow him to take on the tenancy. The difficulty for the court was that
public support for gay rights had grown hugely since 1977 and to deny the tenancy
to be inherited would make the law indirectly discriminatory in light of the wide
interpretation of it in relation to heterosexual couples.
The Acts definition of a spouse, any person living with the original tenant as
a husband or wife,33 immediately ruled the couple out. Lord Slynn, giving the
leading judgement, ruled that, although they lived as though married, because they
30

[1999] 4 All ER 705

The Rent Act 1977 S. 2 (1)
32
Ibid.. S.3(1)
33
Ibid. S.2(2)
31

were both male, they did not live as husband and wife. However he did say that had
the term stood without explanation, the matter might be more debateable. 34 He also
doubted whether it was socially desirable or be congruent with the Human Rights Act
199835 (not in force at that time). Lord Slynn, began by stating that Judges, must
not substitute their own views to fill gaps, 36 instead they need to investigate
Parliaments intention. Slynn ruled that the Parliament of 1977 cannot have intended
the terms husband and wife to include same-sex couples or I would have said so
explicitly37.This ground of appeal was dismissed quickly and without consideration of
what if any differences (bar the ability to procreate) the couples relationship had to a
married couples. However as is common practice, the court was able to find the
same result without making waves through the corridors of power and stepping on
Parliaments toes.

Addressing the second issue, the definition of family, Lord Slynn pointed out that it
was immaterial whether same-sex couplkes were viewd as family in 1920 when the
first Rent Act was passed. What mattered was, as the term was not defined, what
was its ordinary construction at the time of the matter (1994) 38 Lord Nicholls gave an
interesting view on this. He provided that, family was a, term of art, 39 in, ordinary
usage,40 with a, flexible meaning,41 and that its use was intended so that, On the
death of the tenant his family cannot be evicted without further ado. 42

Lord Slyyn went on to trace the broadening of the terms definition in post-war
case law. Since the couple had no formal ties(of blood, marriage or adoption), he first
had to explain that this was not a prerequisite to a finding that they were family. In
Brock v Wollams43 a child cared for but not adopted by the tenant was held to be
34

[1999] 4 All ER 705 at 710

Human Rights Act 1998 Article 8
36
He cites Lord Wilberforce in, Royal College of Nursing of the United Kingdom v Department of
Health and Social Security [1981] 1 All ER 545 at 565
37
Following Harrogate BC v Simpson (1984) 17 HLR 205
38
As was the view of Lord Steyn in R v Ireland, R v Burstow [1997] 4 All ER 225 at 232,
39
[1999] 4 All ER 705 at 717
40
Ibid.
41
Ibid.
42
Ibid. at 717
43
[1949] 2 KB 388
35

family while this was not so where the tenant had a housekeeper who he charged
rent and didnt address by name44. Thes demonstrate that an emotional proximity is
key to the question of sfamily. Brock utilised an objective (reasonable man) test of a
possible family scenario. Slynn also noted the discrepancy between rulings. For
example, a cohabiting couple of five years were found not to be a family because
they had kept their formal independence45. On the other hand, a married man who
cohabited with another women were said to be family 46. In 1987 the need for a, a
"sufficient state of permanence and stability, was required to prove family life.
Dyson Holdings Ltd v Fox47 was given the most weight. The case rebutted the
approach that childless couples were not families. 48 Thus eliminating the oftmentioned limitation of same-sex relationships. That they cannot reproduce. Also key
was the acknowledgement that where a couple could not, for any reason, get
married, their commitment should not be demeaned as a result 49 It was on this basis
that the court was able to find, by a margin of 3:2, that the couple were a family and
that Mr Fitzpatrick was entitled to inherit the tenancy.
The Law Lords were to be commended in their efforts to accommodate the
absurdity that the rules of tenancy inheritance in the Rent Act 1997 had represented
in 1999. They had to work with a body of case law in which the breadth of the
definition of family bore no resemblance to the term as used in modern Britain. They
stretched their authority to limit to produce a fair and reasonable result for the
unfortunate appellant who had cared for his dying lover for so long. Thankfully, this
discriminatory bias was corrected by the amendments made to the Rent Act by the
Civil Partnerships Act 2005.

44

Ross v Collins [1964] 1 WLR 425

Helby v Rafferty [1979] 1 WLR 13
46
Watson v Lucas [1980] 1 WLR 1493
47
[1976] QB 503
48
Such as in Gammans v Ekins [1950] 2 KB 328
49
Watson v Lucas [1980] 1 WLR 1493
45

Race was a major factor in the failure of the Criminal Justice System to deliver
justice to the family of Stephen Lawrence

The family of Stephen Lawrence were badly let down by the metropolitan police after
his murder in 1993. According to The Macpherson Report this was just a symptom
of a wider problem of the polices institutional racism. According to Critical Race
Theory (CLT), society as a whole is to blame. The theory argues that racism is
ordinary and exists in the mind of all people. This is a result of the portrayal of black
people in the news and entertainment media as well as by observing the inequality
between white and blacks. In this sense it becomes a self-fulfilling prophecy.
Because there are fewer black people in higher status jobs than in lower ones,
people attribute this to them being less able intellectually and the cycle continues.
Like the Marxist and Feminist legal theories, CLT argues that the law is made
and administered by and for the benefit of the ruling elite. This is a fair assessment
in the case of race in Britain today. As of 2013, ethnic minorities made up 18% of the
population but only 4.2% of Parliament, 4.8% of the Judiciary and, most surprising,
5% of the Police Force50. The theory refutes the notion that these groups have any
genuine interest in defeating racism. Leading theorists Richard Delgado and Jean
Stefancic state that steps ostensibly taken to tackle racism are designed only to
50

John Wood and Richard Crtacknell,Ethnic Minorities In Politics, Government and Public Life, House
of Commons Library, 16th October 2013

placate black people and liberals and to sustain the myth that society is moving
towards equality, little like the thermostat in your home or office. They assure that
there is just the right amount of racism. Too much would be destabilizing the
victims would rebel. Too little would forfeit important pecuniary and psychic
advantages for those in power. 51 David Goldberg goes further to suggest that where
the establishment seeks to eliminate race as a consideration it is really eliminating
awareness of minorities because, White is not classed as a race but as
racelessness.52 In fact, any genuine efforts to eliminate racism from state bodies
would be counter-productive as it would only make conscious racists redouble their
efforts.
From the very beginning, the polices handling of the murder of Stephen
Lawrence fell far below what was expected of a competent police force. When they
arrived at the scene, they failed to administer first aid as Lawrence bled out or to
secure the scene and finally drove off in the direction opposite to the way the killers
had run. They treated the only witness, a friend of the victim, with suspicion and
contempt. This continued for several days. The police gave conflicting accounts of
his manner at the scene. The Macpherson Report concluded that his, colour and
such stereotyping played their part in the collective failure of those involved to treat
him properly and according to his needs.53 They did not believe a young white man
would have been treated the same way.54 Stunningly a car with the same number of
youths that had killed Stephen was allowed to drive up and down the road less than
90 minutes after the murder.55 This level of attentiveness continued throughout the
investigation to the gathering of forensic evidence and the farcical running of id
parades. The worst aspect being the failiure to extract valuable evidence from the
traumatised eye-witness. The police could not charge a suspect, despite being
given the killers names by many informants.
The report concluded that incompetence was not the sole reason for the
calamitous investigation. Racism was a factor.56 The police lacked the motivation as
51

52

Richard Delgado, Jean Stefancic, Critical Race Theory: An Introduction, NYU Press, 1995

David Theo Goldberg The Racial State, Blackwell Publishing Limited, 2001
The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William Macpherson of Cluny,1999 para
5.12
54
Ibid. at para 5.31
55
Idid. At para 11.35
56
Ibid. para 5.12
53

well as the capability to catch the culprits. As Mrs Lawrence said had it been a white
boy that were killed they would have locked someone up by now. The inquiry
concluded that a culture of unconscious Institutional Racism rather than the overt
racism of individual officers was blame. They cited four sets of facts in evidence for
races envolvement57. First was the treatment of the family at the hospital and of the
witness, Duwayne Brooks and their denial that the murder was purely racially
motivated. They believed Stephen or Duwayne must have proked the attack in some
way. Secondly, the concluded that the proportion of people subject to a stop and
search that were black demonstrated that racial profiling was used as a short cut to
achieve prosecutions. Third, the under-reporting of race related incidents indicative
of a lack of confidence in the police from the victims to investigate them. Finally, the
lack of training given to police in race relations and awareness.

57

ibid. 6.45

Bibliography
1. A comparison of the natural law and positivist approaches to the
question what is law?

Aquinas, St. T,Summa Theologiae Pt. 2 Q. 2, Art. 4. Published in: Selected

Political Writings, tr.. Dawson, J. G ed. P. DEntrves (Blackwell, 1970; reprint
of 1959 edn).
King, M L, Letter from a Birmingham Jail, 1963 Available at
http://abacus.bates.edu/admin/offices/dos/mlk/letter.html 1/2/2014
Locke, J Two Treatises of Government Ch. VI, sec. 57 Edited,
with an Introduction, By C.B. McPherson, Hackett Publishing Company,
Indianapolis and Cambridge, 1980
Fuller, L Positivism and Fidelity to the Law A Reply to Professor Hart
(1958) 71 Harv. L. Rev. 630, 636 .
Fuller, Lon, Morality of Law, rev. ed. (New Haven: Yale University Press,
1969), p. 39.
Austin, John . The Province of Jurisprudence Determined 1832. London: John
Murray.
H. L. A. Hart (1994) The concept of law, Oxford: Clarendon Press

2. An Analysis of how the Justice and Security Act 2013 is accused of

offending the rule of law

Tom Bingham, The Rule of Law, Penguin Law, 2010

Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights, as amended)(ECHR) art.
6 enacted in UK law by S.3 The Human Rights 1998
Lord Bingham, The Rule of Law Lecture. 16/11/06 Centre for Public Law
Al Rawi and others (Respondents) v The Security Service and others
(Appellants) [2011] UKSC 34

Ibid. [2011] UKSC 34 (transcript) at 10

Scott and another v Scott [1911-13] All ER Rep 1 at 9
Al Rawi and others v Security Service and others [2011] UKSC 34,
(Transcript) at. 93
Ken Clarke, The Daily Mail 6/3/12 (http://www.dailymail.co.uk/news/article2110721/KENNETH-CLARKE-We-hear-fears-open-justice-loud-clear.html)
Secretary of State for the Home Department (Respondent) v AF (Appellant)
(FC) and another (Appellant) and one other action: [2009] UKHL 28 at para.
84.

3. The history and tradition of Afghanistan has led to a complex set of

overlapping and conflicting bodies of law and legal institutions

Ashraf Ghani (1978). Islam and StateBuilding in a Tribal Society Afghanistan:

18801901
The Making of a Constitution in Afghanistan, JA Thier - NYL Sch. L. Rev.,
2006 - Available in LSE Research Online: June 2010
Bill Warner, Sharia Law for Non-Muslims (A Taste of Islam) CSPI Publishing
(June 6, 2010)
Mohammad Hashim Kamali (1998). "Punishment in Islamic Law A Critique
of the Hudud Bill of Kelantan, Malaysia". Arab Law Quarterly. Vol. 13, No. 3.
pp. 203234.
The Rule of Law in Afghanistan: Missing in Action [2011] Edited by W Mason,
pg 67
Thomas J. Barfield An Islamic state is a state run by good Muslims: Religion
as a way of life and not an ideology in Afghanistan in Remaking Muslim
Politics: Pluralism, Contestation, Democratization, edited by
Robert Hefner. Princeton, NJ: Princeton University Press, pp. 213-239
Article 64 Constitution of Afghanistan Ratified: October 1964
Ibid. Article 69
Thomas Barfield, Afghan Customary Law and Its Relationship to Formal
Judicial Institutions. Produced for the United States Institute for Peace, 2003
The Yale Globalist, Vol 11 Issue 3 (2011) pg8-9, Marissa Dearing
Marcus Luttrell Lone Survivor: The Eyewitness Account of Operation Redwing
and the Lost Heroes of SEAL Team 10, Little, Brown, 2007
Jim Grant and William McCallister, Tribal Engagement: The Jirga and Shura,
Small Wars Journal, 2010
Dr. Martin Lau, Afghanistan - Final Report on Afghanistan's Legal System and
its Compatibility with International Human Rights Standards, International
Commission of Jurists (ICJ), 7 February 2003

4. The issues surrounding the judicial interpretation of the word family

in Fitzpatrick v Sterling Housing Association Ltd.

Fitzpatrick v. Sterling Housing Association Ltd [1999] UKHL 42

The Rent Act 1977 S. 2 (1)
Human Rights Act 1998 Article 8

Royal College of Nursing of the United Kingdom v Department of Health and

Social Security
[1981] 1 All ER 545

Harrogate BC v Simpson (1984) 17 HLR 205

R v Ireland, R v Burstow [1997] 4 All ER 225 at 232,
Brock v Wollams [1949] 2 KB 388
Ross v Collins [1964] 1 WLR 425
Helby v Rafferty [1979] 1 WLR 13
Watson v Lucas [1980] 1 WLR 1493
[1976] QB 503
Gammans v Ekins [1950] 2 KB 328
Watson v Lucas [1980] 1 WLR 1493

5. Race was a major factor in the failure of the Criminal Justice System to
deliver justice to the family of Stephen Lawrence

John Wood and Richard Crtacknell,Ethnic Minorities In Politics, Government

and Public Life, House of Commons Library, 16th October 2013
Richard Delgado, Jean Stefancic, Critical Race Theory: An Introduction, NYU
Press, 1995

David Theo Goldberg The Racial State, Blackwell Publishing Limited, 2001

The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William

Macpherson of Cluny,1999

Word Count: 3,763 words (excluding contents page, bibliography and headings)