#14946 - The Rule Of Law - Constitutional Theory

4. The Rule of Law

Formulations

• Broadest – people should be ruled by law; law should be capable of ruling people (guiding their behaviour by being clear & prospective)

• Narrower – government should be subject to law (harder to achieve)

  • BUT if government is by definition government authorised by law – then this becomes tautology?

• Thick v thin conceptions – formal requirements as to institutions (prospectivity, independence of judiciary, etc) v substantive requirements as to equality in substance of laws etc

• ‘thin’ conception (law governs all in a way that is predictable & allows citizens to conduct their affairs)

• complemented by ‘thicker’ conception requiring certain procedural rights – no good having proper norms if not properly administered / adjudicated

Stems from features of legal order

• Comprehensiveness; purported supremacy

• Definition, specificity, clarity – and therefore predictability

Goldsworthy —Legal principle or political ideal?

• Legal principle – judicially enforceable – invoked in Canada as basis for judicial review of legislation

  • Ironically, using rule of law as (bare) basis for invalidating legislation would breach requirement for certainty & predictability in rule of law

• Political aspiration – constitutional insofar as conventions require compliance

  • Does not bind legislatures any more than other political principles (like equality or other conventions)

  • Distinct from question whether rule of law compatible with political sovereignty

    • And even if it is, whether democracy is more important than the rule of law

      • Rule of law can exist in systems without democracy – would the case for subjugation of legislative power to bills of rights be stronger?

      • Even if they are, does not follow that democracy ‘trumps’ – just that countervailing factor

History

• Plato — philosopher king & benevolent monarchy, but still hoped that law would have authority in itself

  • “where the law is subject to some other authority and has none of its won, the collapse of the state is not far off” <> “if law is the master of the government and the government its slave, then the situation is full of promise”

• Aristotle — first pure advocate of rule of law

• Deuteronomy imposed some limits on Jewish kings — although never implemented or enforced

Raz — Thin conception

• Raz — Fallacies re rule of law

  • It does not have overriding importance

    • For good legal system has to be complemented by democracy, justice, equality, human rights, etc

  • Rule of law does not equate to rule of good law — otherwise becomes a truism

    • System can comply with the rule of law and make many bad laws

• Waldron —Rule-book conception — texts & precedents of law applied with certainty & without fear or favour

• One of a cluster of ideals constituting political morality — together with human rights, democracy, and free markets

  • Rule of law is fundamental

    • Democracy cannot exist except with procedures of election secured by law

    • Markets require law governing property & contract

    • UDHR preamble states essential that must be protected by rule of law

  • Rule of law is older — since Aristotle, well before human rights & democracy fully developed

• Rule of law required but not sufficient for good government

  • Cf Hayek – uses rule of law to call for good laws – in particular to prohibit government interference with economy – rule of law should not be mobilised to particular political agenda

    • Definition of ‘good’ necessarily differs from person to person

  • Pursuit of any particular social goal cannot be inconsistent with rule of law

• FA Hayek’s definition – government bound by rules fixed & announced beforehand, which are sufficiently certain to allow individuals to plan their affairs

• Says nothing about how law ought to be made – democratic structures, etc

  • Historical origins – rule of law came about well before democracy

  • Brings in judicial review through ultra vires philosophy, requires independence of the courts

  • Really just an exercise in taxonomy – but gives the principle some meaning

• Extremely unjust laws that are prospective, promulgated, clear and stable are not objectionable on rule of law grounds

• Rule of law is necessary but not sufficient for justice

• Thin justification does not require any particular substantive limitation on legislative power – justifies only very limited, procedural review of legislation

  • Impractical – requirements for publicity of laws, stability, clarity, cannot be absolute (but does this negate possibility of review?)

    • Eg Ashworth / France – defence of ignorance of law if reasonable

  • Prospectivity – justified in certain circs & should leave to parliament to decide

    • Obviously shouldn’t have judicial mandate to invalidate on that ground alone –

      • eg war crimes legislation is retrospective but justified

      • British Parliament 1965 reversing right to compensation retrospectively

      • Cf. Gaudron J in Tampa special leave application

      • Changing common law in criminal cases – has retrospective effect (eg Issa & Elias) – ‘fairy-tale’ of declaratory theory of common law

    • From political perspective – desirable in the pursuit of the aspiration that have constitutional requirement to put retrospective legislation to plebiscite (if parliament derives sovereignty from the people)

“Functional” conception — variant of thin view

• Rule of law <> Rule of man

• IE rule of law strongest when men have least discretion

• Still says nothing about virtue of laws — just encourages certainty at expense of flexibility

As a negative value

• Rule of law essentially a negative value – minimises dangers inherent in the existence of law

  • Conformity does not cause good but avoids evil

  • No necessary connection between law & morality

• TRS Allan — Response to Raz’s ‘negative value’ conception

  • Reduces to requirement that society be governed by ‘law’ – bare conception that adds nothing to requirement for ‘law’ of a kind

  • BUT that is true, and it has follow-on consequences as described above; still has substance; says more than requirement for source of authorisation

Knife analogy –

• sharp knife is a good knife, even if can be used for bad purposes – laws conforming with rule of law are good laws in a sense, even if bad in content

  • Guarantees law/knife’s ability to function – even if functions in a bad way – supports instrumental value, not moral value

  • Pre-requisite for law/knife’s ability to function in a morally good way is to function at all

• Finnis — Criticism of knife analogy

  • Finnis rejects that rule of law simply enables efficiency – eg requirement for stability & subjection of government to rules decreases efficiency to guarantee good government

  • BUT knife analogy isn’t efficiency in the sense of executing the sovereign’s will – is efficiency in sense of enhancing rules’ ability to govern behaviour of individuals & government

    • Nor is it Barber’s efficiency in the sense of achieving virtuous outcomes

Criticisms of thin conception

• would allow ‘chronic lawless violence’ inflicted on some citizens against others

  • = formal equality before the law

  • concerns extent of appropriate regulation of activity – also raises question about applicability of rule of law to private actors

  • Does rule of law require some minimum standard of regulation? Probably not – that is supplied by other ideals – eg equality, democracy (indirectly)

Thick conception

• Finnis —Natural law conception – BUT seems to put the cart before the horse – law must be subject to certain (rule-of-law) restraints to be legitimate, that legitimacy has a biproduct of fairness // cf law must be fair to be legitimate, that fairness requires certain restraints

  • Authority of law depends on ability to secure justice – eg criminal law’s reliance on proportionality, procedural fairness, etc

• TRS Allan —Rule of law = maintenance of conditions consistent with liberty of individual & equality of liberty for all

  • BUT this is charged with political ideals, extends beyond narrow rule of law conception

  • Is the kind of conception that is mobilised against the Regulatory & Welfare State

• Dicey & later Hayek conceive rule of law as relationship between law & liberty

Waldron — rule of law requiring good procedures v good outcomes

• Waldron — Proceduralist conception — procedures of law will be adhered to; certainty of outcome less important than certainty of procedure

  • Could be framed as “thin” conception — procedures are in the rule book as well

  • Alternatively, “thicker” rule of law conception as presumes good procedures, involving proper & considered deliberative procedures, and therefore considered & tempered outcomes

  • Purpose of constructing good procedures is to ensure good outcomes

  • <> even thin conception — must also have some core minimum of good procedural requirements unless consistent arbitrariness is to satisfy rule of law

• Dworkin — the rights conception (outcomes) — moral & political rights of citizens, as against each other & the State, be recognised in positive law & enforceable through institutions

  • If only legal rights — would be thin “Rule-book” conception

  • Expressly thick — equates rule of law with rule of good law (ie law that accurately represents morality)

    • “requires, as part of the ideal of law, that the rules in the rule-book capture and enforce moral rights”

  • Encourages each individual to suppose that his relations with other citizens & government are matters of (moral) justice

  • Overtly focuses on legal outcomes rather than procedures

    • Although rights are procedural...