Misunderstanding the rule of law

In our increasingly topsy-turvy world, certain longstanding ideas somehow manage to survive manipulation. The rule of law is among them, even if it has increasingly become a cliché and rhetorical device flaunted by politicians.

The beauty of the concept is that it transcends the hurly-burly of ideological controversy, and provides objective standards by which to judge a legal system.

Ever since Lord Bingham advanced a substantive or ‘thick’ notion of the rule of law, however, its fundamental tenet has been adulterated and weakened. He sought to expand its reach to include the protection of human rights under its umbrella. And this view has recently been echoed by Attorney-General, Lord Hermer KC.

This is profoundly misguided for at least three reasons. First, the meaning of human rights is far from settled; it, therefore, introduces uncertainty where there is clarity. Secondly, and more importantly, loading the rule of law with extraneous benevolent purposes saps it of its essential character as a constitutional instrument to contain the exercise of arbitrary power. Thirdly, it actually diminishes the protection of human rights by merging it with what are essentially procedural devices to ensure that the law is applied equally to all.

It is important to resist amplifying and encumbering the rule of law beyond its nucleus. Lord Hermer’s approach detrimentally dilutes it by seeking to transform its principles into a social philosophy.

Human rights are most effectively protected in their own name. If the purpose is to instil moral values into the rule of law, they are already there. Its conditions have both substantive foundations and normative consequences. The right to a fair trial, for example, is both grounded in principles of justice, and presumes the existence of impartial judges. There is a symbiotic relationship between procedural and substantive features of the rule of law. But this is a far cry from the misconceived incorporation of vague (and often conflicting) human rights into the conditions by which to test conformity with well-understood criteria. We should resist amplifying and encumbering the concept beyond its nucleus. 

The lawyer most closely associated with the idea seems to be forgotten. Albert Venn Dicey (as every law student knows) identified three principles that stipulate the necessary institutional and constitutional requirements, without actually specifying what the content of the law ought to be. 

The first principle declares that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.’ 

The second principle asserts that ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.’ This affirms the significance of equal access to the courts. Again, Dicey expresses a formal or institutional notion rather than a substantive concern with how judges actually apply the law to different individuals or social groups.

Thirdly, Dicey asserted the superiority of the British unwritten constitution over those written constitutions of continental Europe. Individual liberty, he argued, was more secure where it was the product of judicial decisions rather than being susceptible to repeal or abrogation by authoritarian governmental fiat.

It is mistaken to claim that a ‘thin’ version of the rule of law is stripped of ethical content. The proposition that, for example, the law ought to apply equally to all regardless of their social status, gender, creed, race, and so on bristles with moral force. If the rule of law means anything, it signifies a powerful check on the abuse of arbitrary power. This does not make it a negative ideal; its strength lies in its affirmation of the values of fairness and integrity. 

Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of seventeen books including The Rule of Law Under Fire? The seventh edition of his Understanding Jurisprudence: An Introduction to Legal Theory will be published by Oxford University Press next year.
 

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