The Rule of Law

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This article is a topic within the subject Introducing Law & Justice.

Contents

Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 111-112 (Chapter 5); 423-425 (Chapter 16).

Supplementary Materials: Rule of Law

Introduction

[1] The Rule of Law aims to prevent the exercise of arbitrary or tyrannical power. It became popularised by AV Dicey, who described it through three main tenets:[2]

  1. Absolute supremacy of the regular law, as opposed to arbitrary power.
    • This essentially means that there can be no existence of arbitrary power and that no person may be punished for anything but a breach of the regular law
  2. Equality of all men in the eyes of the law
    • No-one is above the laws, even those who adjudicate the laws or create the laws
    • It also means that the law will apply in the exact same way regardless of social, economic or political status (though the law will be shaped to deal with different scenarios involving these factors)
  3. The law of the Constitution is not a source of human rights, but the consequence of inherent human rights and these are upheld by the common law as defined by the courts
    • Dicey is saying that we don’t derive our rights from the Constitution; the Constitution is the result of our rights, the law protects the rights based on its continual evolution, rather than a codified Bill of Rights (like they have in the U.S.).
  • T.R.S Allen says that “implicit in Dicey’s conception of the rule of law is a view of the rights of the individual as basic to the political order. The protection of the individual in civil society is guaranteed by his freedom from arbitrary rule, uncontrolled by law. Government officials are answerable to the courts for their treatment of him [because of] the equal subjection of all classes to the ordinary law.

Later commentators on the rule of law have added that it is not enough to ensure the state follows the law, because if the state creates the law it can easily be oppressive – it is therefore a very important part of the rule of law to have rules to control government power.

  • The rule of law is a concept fundamental to our legal system, and the Bill of Rights was aimed against the possibility of the king abusing his powers – the restraint it placed on his power came from the power of the rule of law as the parliament conceived it.
  • The establishment of parliamentary control and rejection of royal control meant that Parliament was recognised as having the power to legislate over colonial territories as they arose, while the royal prerogative in relation to foreign affairs meant the colonial territories’ day-to-day regulation could be managed by the Crown with little interference.
  • The Privy Council was the main body in colonial regulation; power to make legislation was fought by colonials in Australia using the same arguments used in the century leading up to Glorious Revolution. They eventually succeeded in developing individual parliaments and confining power of governors.

Function of the Rule of Law

[3]The rule of law is more of an abstract, rather than a concrete idea. Rather than being defined, it is more appropriate to analyse the function and the value of the rule of law and how it acts in our modern legal system.

  • The first function of the rule of law is to curb the arbitrary and inequitable abuse of power by governments and officials by maintaining that the state is bound by law.
    • In essence it is aimed at protecting citizens against the power of the state, which comes from restricting the state’s power to existing law. No citizen can be punished or prosecuted for anything but a violation of the law.
    • Prue Vines says that it is not enough to ensure that public bodies follow the law, because they may create oppressive law. Rather the Rule of Law protects individuals by restraining this power to the demands of functioning law.
      • . Most of these rules, as is the case in Australia, come from a written constitution. An example is then that the Federal government can’t change anything within the constitution without a referendum and the majority of the people and states agreeing to the change.
    • It is also important to note that independence between those making laws (parliament) and those interpreting laws (the judiciary) is essential in curbing state power, so political pressures don’t warp them.
      • This then relates closely to the idea of democracy, and many legal academics argue that democracy and the rule of law are tightly bound. A liberal democracy becomes a way of protecting citizens against the state by making the government responsive to citizens, also restraining its power.
  • The second function of the rule of law has a more social scope, aimed at protecting citizens’ property and rights from infringements or assaults by fellow citizens. In the end this comes down to the fact that every individual is equally subject to the authority of the law.
    • As Krygier states in his article, it means that no-one can have the law giving them an advantage – the courts must be “blind” to the differences in people’s race, backgrounds and socio-economic status – symbolised by the blindfold over the carrier of the scales of justice.
      • Some argue that this social inequality does lead to unfair advantages for those who have more resources than others; however it is important to understand that the rule of law can’t ensure justice every time – it just ensures that the legal system and society function effectively and as fairly as possible.
    • This has a strong link to human rights in a modern context. Over the past few years, the number of ‘guardian institutions’ like human rights organisations aimed at safeguarding this second function of the rule of law have increased dramatically.
      • This shows that the judiciary alone is not sufficient to protect citizens, even with its continual evolution to improve access to justice; the rule of law extends beyond the judicial system into a social realm.

Character of Law

The rule of law also determines the character of the law.

  • Krygier says that: “As a bare minimum, the point of the rule of law...is relatively simple: people should be able to rely on the law when they act... [this] requires that it exists, be knowable (thus the existence of lawyers) and its implications be relatively determinate and can be reliably expected to set the bounds within all major actors, including the government, will act”.
  • Furthermore, the law must be enforceable, stable and progressive to cater to changing social and legal contexts.
    • This reinforces the flexibility of the rule of law – it isn’t a set conglomeration of rules, it is a set of inherent societal and legal values that determines how laws are made and why they are made.

Value of the Rule of Law

The rule of law is valuable in establishing order and liberty in society.

  • The International Commission of Jurists in 1959 said, “The rule of law does indeed safeguard and advance the civil and political rights of the individual in a free society”.
  • Krygier has also said that it allows people to live without fear as it “saves us from others and them from us” as well as “requiring rulers to operate under law”.
    • By restraining the power of the state, and making each individual equally subject to the law, the rule of law is thus valuable – the government cannot abuse you and someone who commits a wrong against another is held accountable.
      • While this doesn’t mean that there will be no crime, it curbs the occurrence linking to the rule of law requiring individuals to understand their obligations and so the rule of all co-ordinates or guides society to create a sense of order.
  • Today it is also widely accepted that there can be no justice without the rule of law
    • Some writers argue that the rule of law has nothing to do with morality; but some such as Lord Blackstone have said that the public must have faith in the legitimacy of the legal system to protect individual rights and achieve justice to the best of its ability in order for the rule of law to really succeed as a foundation for the legal system.

The following quote on the rule of law is from Mark Plunkett, former UN Transitional Authority in Cambodia special prosecutor: “At the end of the day, acceptance of the rule of law is about establishing public confidence in the courts...criminal justice system...and impartiality of the police to apprehend offenders...”[4]

References

Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, pp. 111-2
  2. AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959
  3. Krygier M, "The Rule of Law: Legality, Teleology, Sociology', in G.Palombella and N. Walker Re-locating the Rule of Law, 2008
  4. M Plunkett, 'The Establishment of the Rule of Law in Post-Conflict Peacekeeping', in H Smith (ed) International Peace Keeping; Building on the Cambodian Experience, Australian Studies Centre and Australian Defence Force Academy, Canberra, 1994, p76
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