LAW 1021

11/10/2019

Rule of Law
What is it?

Rule of Law –

The authority and influence of law in society, especially when viewed as a restriction on individual
and institutional behaviour; hence it is the principle whereby all members of a society, incl. those in
government, are considered equally subject to publicly disclosed legal codes and processes. The
phrase itself refers to a political idea, not any specific legal rule. There is no universally agreed upon
definition for the rule of law – it is more of a concept or philosophy than a substantive entity.

Dicey’s*1 Rule of Law:

A fundamental principle for democracy in the UK. Dicey’s ideas are used as a starting point, but not
to be taken as gospel. Should be used to form your opinions about how far his rules of law are still
relevant and applicable today.

1. No wide, arbitrary or discretionary powers:

He did not care about the quality of the laws – if they were harsh or brutal, discriminatory, etc. “In
this sense, the Rule of Law is contrasted with every system of government based on the exercise of
persons in authority of wide, arbitrary or discretionary powers of constraint.” All laws must be clear
and not leave scope for executive discretion, any discretion open to the executive allows it to
interfere with liberties in an arbitrary2 manner.

No man can be lawfully punished by authorities except for breaches of law established in an
ordinary manner before courts of the land.

Thought that all power exercised by public officials must be authorised and that where they’re
delegated authorisation, those powers must be narrowly defined so there’s no room for ambiguity
or discretion.

2. Ordinary law to apply equally to all:

Everyone should be held accountable by the law equally, regardless of status, class, etc. No one is
above the law, was his argument. Officials and citizens need to obey the same law, and they should
be held to account through the same system of ordinary law.

This doesn’t necessarily represent where we are in the UK today; however the law does still apply to
everybody.

3. The Rule of Law should result from the common law, not a written constitution:

“We may say that the constitution is pervaded by the role of law on the ground that the general
principles of the constitution [ ...] are with us the result of judicial decisions determining the rights of
private persons in particular cases brought before the courts.” The constitution is pervaded by the

1
Albert Venn Dicey was a British Whig jurist and constitutional theorist. Popularised the phrase “rule of law”
and his writing formed the principles of the uncodified British constitution. Author of Introduction to the Study
of Law of the Constitution (1885).
2
Based on random choice or personal whim rather than by reason or system. Or, of a power or ruling body,
unrestrained and autocratic (a ruler who has absolute power) in use of authority.
rule of law, since general principles of the constitution are the results of judicial decisions which
determine the rights of private citizens.

“Rule of Law” outside of Dicey’s view? Formalist vs Substantive Ideas:

Formalist/Procedural Ideas (e.g. Raz 1979, Fuller 1964):

Law is embodying only formal qualities (clarity, prospectivity, stability, openness and access
to an impartial judiciary). So you can have laws that aren’t necessarily good or moral – see below –
as long as they embody the four qualities.

Substantive Ideas (e.g. Dworkin 1985, Hart 1961, Bingham 2010):

The rule of law must embody fundamental rights (i.e. must contain laws that are good and
just).

Joseph Raz: Author of The Authority of Law (1979), an Israeli legal, moral and political philosopher.
Claims that the primary function of the rule of law is to ensure that ‘the law should conform to
standards designed to enable it effectively to guide [an individual’s] actions.’ To this end, he believes
in the following principles:

 Laws should be prospective (expected to happen at a future date) rather than

retroactive (taking effect from a date in the past). That is to say, people
cannot be guided by or expected to obey laws that have not as yet been
introduced.
 Laws should be open and clear to allow people to understand them and guide
their actions in accordance with them.
 Laws should be stable and shouldn’t change too frequently as this will cause
confusion.
 There should be clear rules and procedures in place for making law:
o The independence of the judiciary has to be guaranteed to ensure that
they are free to decide cases in line with the law and not in response
to any external pressure. I.e. courts must be independent so they can
resolve disputes without partiality.
o People must have access to courts, where all parties can have an open
and fair hearing and the principles of natural justice can be observed.
o There must be appropriate constraints on the exercise of power by those
in government and law enforcement.

“It is not to be confused with democracy, justice, equality (before the law or otherwise), human
rights of any kind or respect for persons or for the dignity of man. A non-democratic legal system,
based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities,
and religious persecution may, in principle, conform to the requirements of the rule of law better
than any of the legal systems of the more enlightened Western democracies. This does not mean
that it will be better than those Western democracies. It will be an immeasurably worse legal
system, but it will excel in one respect: in its conformity to the rule of law.” – Joseph Raz, The Rule of
Law and its Virtue.

Lon Fuller: American legal philosopher, author of The Morality of Law (1964).

Set out eight principles which he called “the inner morality of law”. Didn’t think repressive and
unjust systems could coexist with the rule of law.
Principles requiring laws be:

 General – apply to everyone

 Public – published
 Prospective – not retroactive Pretty much identical to
 Coherent – not contradictory Raz’s principles. Same
 Clear – announced then followed underlying themes and
 Stable ideas.
 Practicable, i.e. not impossible to fulfil

Overview of Substantive vs. Procedural…

Basic Principle:

Compliance with rule of law requires only that law is enacted in the prescribed way, e.g. must be
approved by both Houses of Parliament and receive Royal Assent3. It does not matter what the law’s
content is or whether it is just. This is generally uncontroversial.

Procedural/Formalist Understanding:

Enactment by authorised body is necessary but rule of law also requires that the law has certain
characteristics, e.g. prospective, clear, publicly accessible, general, coherent, stable, etc.

Again, approach is agnostic on the content of the rule of law.

Substantive Understanding:

Accept all the formal attributes of the rule of law, but also requires the content of the law to confirm
to particular norms, e.g. human rights. Rule of law must be the rule of good law!

What could result from formal adherence to a system of extremely harsh and unjust laws?
 Jim Crow era laws
 Stalin’s rule
 1984, George Orwell.
 The Handmaid’s Tale, Margaret Atwood
 Mugabe’s rule in Zimbabwe
 Apartheid regime, South Africa
 Nazi regime
 Mussolini’s rule of Italy

There is always the possibility that without just laws, a state could very well become a
dictatorship/fascist regime as we have seen in few of the examples listed above and pave the way to
even more serious war crimes. Following the procedural/formalist understanding can give rise to
governments ruling in the same way the Nazis did, as they similarly tried to justify their crimes and
receive more lenient punishment for their war crimes by claiming that they were acting within the
law.

The Position of Lord Neuberger:

Former president of the Supreme Court, stated that the rule of law “comprises much more than
properly made laws properly administered: the contents of the laws must respect freedom of
expression, freedom from torture and other fundamental freedoms and rights, such as access to
justice and equality before the law.”
3
The monarch’s agreement that is required to make a Bill into an Act of Parliament. Regarded today as a
formality as, while the Monarch has the right to refuse Royal Assent, it doesn’t happen nowadays.
What does the Rule of Law require?
1. Legality
2. Certainty
3. Equality
4. Access to Justice

These principles are ‘ideal types’ – notions of ‘if it’s working perfectly, this is what it should consist
of’. The rule of law itself is an ideal type; the reality is, however, that it’s never perfectly
implemented all the time. E.g., the rule of legality, that everyone must ne subject to and bound by
the same law, citizens and officials alike – the criminal justice system must investigate and should
bring charges against the accused to try and prosecute them. Sometimes, this is not always possible
– sometimes police can’t identify a suspect, prosecutors acting within the confines of the law decide
not to go ahead with the prosecution for public interest. This is not illegality – they’re not doing
anything unlawful by failing to identify criminals or not prosecuting so long as they follow correct
procedures.

Legality:
 Requires that all persons must be bound by the law
 Actions of public officials must be regulated by law, their powers must be authorised by law,
any powers they exercise must only be powers authorised by the law – can’t exercise
powers they aren’t given (acting ultra vires – beyond the power granted to them), must act
within the scope of the power delegated to them and exercises of power must not be
arbitrary (must not be making decisions for irrational or unreasonable motive).

Certainty:
 For the Rule of Law to work well, we need to determine what it requires of us. We need to
be able to determine whether our actions might violate the laws, and what penalties we
might face is we do so.
 Law must be predictable, clear, certain, public, transparent, prospective and accessible.
 Persons cannot be punished for actions that were not criminal when they were committed
(prospective/not retrospective)

Equality:
 Everybody must be held accountable for their actions by the same law in the same manner.
No space for discretion – very formal notion of equality (Dicey)
 Formal equality does not prohibit discriminatory and unequal laws – all officials to be subject
to the same responsibility for every act done without legal justifications as any other citizen,
but the laws themselves do not have to be just. Proponents of substantive understanding of
the rule of law would argue for substantive equality.

Access to Justice:
 No person should be convicted except by lawful judgement by the courts
 Courts must be accessible, independent and impartial
o Formal rule of law: challenges on procedural grounds, e.g. did the decision maker
exceed their power
 o Substantive rule of law: challenges based on human rights
 Independence of legal representation
 Due process and fair trial guarantees (blurring of formal/substantive distinction)
 Need access to legal representation and fair trial guarantees

Judiciary’s role in upholding Rule of Law:

 Articulating common law principles
o Illegality (the decision maker failed to properly understand the legal framework)
 Law is implemented in a manner that reflects Parliament’s intents and
purposes. Questions whether the law was enacted legally (Jackson case),
whether the decision-makers acted within the scope of their lawful powers
when making the decisions, whether the decision-makers failed to take
relevant factors into account, or whether their decision was influenced by
irrelevant factors.
o Procedural impropriety (the decision maker did not follow correct procedure)
o Irrationality (the decision maker acted unreasonably)
o Apply law of torts against public office holders (e.g. Entick v Carrington; Malone v
Commissioner of Police)
o Interpreting legislation in ways supportive of the rule of principles (and since 2000
applying the Human Rights Act 1998) (Black Spider Letters case; ex parte Pierson)

 Interpreting legislation in ways supportive of the

o Whether the law was enacted legally
o Whether the decision makers acted within the scope of their lawful powers (e.g. ex
Parte Witham)
o Whether decision makers failed to take into account ‘relevant’ considerations
o Whether decision makers took irrelevant considerations into account (Padfield)

 Examples:
o R (Jackson) v Attorney General [2005] UKHL 56
o R v Lord Chancellor (ex Parte Witham) [1998] QB 575
o R v Minister of Agriculture ex Padfield [1968] AC 997

 Procedural propriety – decision-making process. If there’s a process by which decisions

should have been made, was it followed appropriately? So if people affected by a decision
had the opportunity to have their voices heard, to be consulted, make representations, were
they given that opportunity? Did they have rights and interests that should have been taken
into account or which they had a legitimate expectation that they would be taken into
account?
 Requires decision makers to be unbiased and to grant a fair hearing to claimants before
depriving them of a right or significant interest, including due process rights
 Applies where claimants have a threatened criminal or private right, an important interest or
a legitimate expectation

3
The monarch’s agreement that is required to make a Bill into an Act of Parliament. Regarded today as a
formality as, while the Monarch has the right to refuse Royal Assent, it doesn’t happen nowadays.
  In determining reasonableness of a decision, the courts are informed by rule of law
principles. Did this comply with their understandings of how the rule of law should normally
operate, did they act in a manner that was uncertain, retrospective, etc. There’s an
assumption here that any power that’s exercised irrationally or unreasonably is an abuse of
that power – this could include decisions made based on insufficient evidence, or which are
inconsistent (i.e. if you’re making a series of decisions that contradict one another).
 Unreasonable or irrational decisions represent arbitrary exercises of power
 Decisions have also been struck down for being unreasonably harsh and repressive
o Examples:
 E v Secretary of State for Home Department
 R v Secretary of State for the Home Department ex parte Leech (No 2) [1994]
– concerns the right of prisoners to write letters to their lawyers from the
prison, and there was a prison rule that these letters may be stopped if they
were inordinately long or otherwise objectionable. According to the Court of
Appeals, this created an obstacle to the prisoner being able to access justice
as it would also apply to prisoners seeking legal advice for future legal
proceedings. It isn’t unlawful to screen prisoner correspondence, but it isn’t
lawful to stop them. The way the powers were being exercised was too far –
it was beyond what was strictly necessary so the decision was struck down
for being too harsh.
 R (Reilly) v Secretary of State for Work and Pensions [2016] EWCA Civ 413
 R (on the application of Anufrijeva) v Secretary of State for the Home
Department [2003] 3 WLR 252

Conclusion:
Rule of law is a central principle of constitutional governance