SECTION 1. UNPACKING THE RULE OF LAW, ACCOUNTABILITY AND THE PUBLIC TRUST
3. THE RULE OF LAW EXPLAINED
The Rule of Law is a majestic phrase with many largely reinforcing and supportive meanings. It stands for a fundamental governance value (along with ‘enlightenment’[i] values of liberty, equality, citizenship, democracy, human rights and respect for the environment). It stands for a fundamental governance value. It stands as an ethic for lawyers, officials and soldiers[ii], the basic principle of constitutionalism, and a set of institutions that supports its attainment. While these multiple meanings and dimensions may occasionally serve to confuse, each of them are instrumental in advancing the others. The partial achievement of each supports the fuller achievement of all.
One of the simplest and most enduring versions of the idea of the Rule of Law centres on an evocative but impossible ideal: “the government of laws not the rule of men” (John Adams modifying Harrington[iii] who had referred to an ‘empire of laws not the rule of men’).[iv] Taken literally, this precept is nonsense[v] even with the necessary and much belated introduction of gender-neutral language. Sovereign authorities can only rule through human beings.[vi] The Rule of Law cannot circumvent that. What it does stand for is a set of rules, institutions and processes to ensure as far as possible that laws are made and powers are exercised according to, and subject to, rules made in advance. No single rule or institution is sufficient, so most attempts to define the Rule of Law provide a set of salient points and demand further explanation.
The two most influential such attempts are those of the legal philosopher Professor Joseph Raz and the former Senior Law Lord, Lord Bingham who set out eight overlapping ‘desiderata’/’rules’.[vii] What they agree on can be distilled into five salient points:
- laws should be relatively stable, prospective, open, clear and generally applicable to all).
The adverb ‘relatively’ should be noted. These are not absolutes. For example retrospective legislation is justified in some cases (Fuller)[viii] and objective differences can justify applying different laws to different persons (Bingham); - law making should be guided by open, stable, clear and general rules;
- judges must be independent and there should be ready access to their courts;
- discretion must not be abused and must be subject to judicial review;
- natural justice and procedural fairness[ix] .
This combination of rules emphasises a core element of the “Rule of Laws, not men” idea. No one is above the law in two senses. First, the law applies to all – including those who hold official power. (Some jurisdictions provide degrees of immunity to legislators and/or Presidents, but we, at ART do not entertain that pernicious foolishness.) Secondly, public officials (including ministers, other elected representatives, public servants and others exercising state-sanctioned power) only exercise powers that have been granted to them and for the purposes for which they have been granted that power. In a democracy, that power belongs to the citizens and must be used for the benefit of the citizens rather than the benefit of the officials.[x] It is for this reason that we say that power has been entrusted to them and grounded in the ‘public trust’ principle.
This is largely encapsulated by one of Bingham’s rules[xi] : –
“Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers. This sub-rule reflects the well-established and familiar grounds of judicial review.”
However, we would emphasise that, beyond those conferred limits, an official has no power (the literal meaning of the legal term ‘ultra vires’). Any attempt by an official to act beyond the designated power has no legal effect on others as if the attempt had never been made[xii] even though the attempt might constitute a violation of a code or even a criminal offence. This leads us to an important and structural exception to the generality applicability of, and equality before, the law. Two “objective differences” justify differentiation. The first is that citizens and officials face dichotomous ‘closure rules’ (the rules that apply when the law is silent). For citizens and other residents, the closure rule is ‘whatever is not prohibited is permitted.’ For officials acting in their official capacity the closure rule is ‘whatever is not permitted is prohibited.’ The second difference is that the Rule of Law is essentially directed at officials and their obligations. Some see the Rule of Law like ‘law and order’, emphasising that everyone must obey the law. Bingham’s general statement of the Rule of Law reflects this. He states that, “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws”.[xiii] The Rule of Law is first, last and foremost about the duties of officials to citizens and their interests. Citizens do not have equivalent duties to officials. Officials have ethical duties towards the law that extend beyond those of ordinary citizens. Indeed, the system clearly contemplates citizen law breaking and provides room for civil disobedience. Civil disobedience by officials is far more fraught. (While whistleblowing may involve breaking laws that prevent disclosure this is merely as a safety valve where existing accountability measures prove inadequate.)
It should be emphasised that the fifth rule (natural justice and procedural fairness) is a variable standard. Those suspected or accused in the criminal process receive the strongest set of protections owing to the personal consequences and public opprobrium of criminal conviction.[xiv] In other adjudicative procedures the requirements vary, generally depending on the degree to which individual interests are affected.
[i] Ideals that are similar (‘or congruent’) to the Rule of Law are found in almost all cultures. The Rule of Law (and hence the English language version) emerged in the 17th century in opposition to absolutist tendencies in the Scottish Kings (it is a Moot point if they would have stood up to another Tudor like Elizabeth 1, let alone Henry VIII. The Rule of Law and related ‘Rechsstaadt’ ideals were at the centre of the enlightenment, though so much more effective when supported by other enlightenment governance values.
[ii] Indeed, the ethics of such officials were central to the development of he Rule of Law in the UK. Citation
[iii] The term appears to have first been used by the English republican writer James Harrington, in his tracts The Prerogative of Popular Government (1657) and The Commonwealth of Oceana (1656), in slightly different terms: “an empire of laws and not of men”. The revised version is widely used: for example, Toohey (1993). James ancestor (Sir John Harrington) coined the chilling ditty:
‘Treason never prospers: What’s the Reason?
For when treason prospers, none dare call it Treason’
[iv] Thomas Fuller ‘Be ye never so high, the law is above you‘ is another rhetorical flourish in the same vein
[v] See Sampford, Charles (2006) Retrospectivity and the Rule of the Law. Oxford University Press, United Kingdom, Chapter 7.
[vi] Even if we were ruled by algorithms, they would have to be encoded by human beings
[vii] Raz, Joseph. 1979. “The Rule of Law and its Virtue.” In The Authority of Law: Essays on Law and Morality. Oxford University Press. Bingham, L. (2007). The Rule of Law. The Cambridge Law Journal, 66(1), 67-85.
See also Hon Chief Justice Bathurst AC’s Challenges to the Rule of Law in Modern Society, April 2021 (https://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2021%20Speeches/Bathurst_20210406.pdf,
[viii] Like most theorists since Lon Fuller they recognise that sometimes retrospective legislation is justified. See Sampford, Charles (2006) Retrospectivity and the Rule of the Law. Oxford University Press, United Kingdom.
[ix] Natural Justice is the traditional term. The concept of ‘procedural fairness’ has been developed by the Australian High Court in recognizing that fair procedures may vary depending on context.
[x] In countries that are not democracies, the power may be that of the monarch who entrusts officials to exercise delegated power for his benefit. This would be an unattractive form of the Rule of Law. If the power belongs to the officials, there is really no Rule of Law.
[xi] Bingham, L. (2007). The Rule of Law. The Cambridge Law Journal, 66(1), 67-85, 78.
[xii] It is called a ‘nullity’.
[xiii] Bingham, L. (2007). The Rule of Law. The Cambridge Law Journal, 66(1), 67-85, 69.
[xiv] Bingham provides a standard list: open courts, independent courts, adequate opportunity to be heard, a person potentially subject to any liability or penalty should be adequately informed of what is said against him; that the accuser should make adequate disclosure of material helpful to the other party or damaging to itself; that where the interests of a party cannot be adequately protected without the benefit of professional help which the party cannot afford, public assistance should so far as practicable be afforded; that a party accused should have an adequate opportunity to prepare his answer to what is said against him; and that the innocence of a defendant charged with criminal conduct should be presumed until guilt is proved.