1. The Rule of Law

The Rule of Law is central to understanding legal systems in democracies. It all begins here.   

For the transcript of this episode and further reading, visit https://lawincontext.com.au/rule-of-law/

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Transcript

Stephen Parker: The first episode of our law in context series is about the rule of law.  It is one of the fundamental ideas that underpin law in some countries but not others.  

Stephen Bottomley: So, Stevo, if you had to define the rule of law in one sentence, what would you say?

Stephen Parker: Well, Stevo, I’d say the rule of law requires governments to govern according to laws which have been laid down in advance.

Stephen Bottomley: Really?  You wouldn’t say that it requires people to obey the law?

Stephen Parker: Yes it does require that but you asked me for one sentence, and I chose governments, so don’t get picky.

Stephen Bottomley: Fair enough.  Now let’s break it down into its elements.  First is the word “rule”.  

Stephen Parker: Yes, this means that it isn’t optional.  Governments and people can’t just break the law when it suits them.  Everyone has to follow laws laid down in advance.

Stephen Bottomley: Then we get to the prepositions.  The second word is the word “of”.

Stephen Parker: Yes it’s a clever little word.  We aren’t talking about rule by laws.  A dictator can dress their decisions up and just call them laws, but really they are just dictats.  

Stephen Bottomley: Which leave us with the word “law”

Stephen Parker: Yes, and this is a conceptual minefield.  Whole books have been written on what is law.  There are traditions of legal philosophy going back centuries debating the nature of law.  But for this very preliminary discussion I think we can say a few things that aren’t too controversial.

The first is that for something to be a law it must be made in a certain way.  Law-makers must follow the procedure laid down in a higher or basic law called the Constitution.  Constitutions as we know only too well in Australia are very rarely altered, and to alter it there has to be a referendum – a vote of the people.

Stephen Bottomley: Mmmm.  We were both born in England.  The United Kingdom doesn’t have a written constitution.

Stephen Parker: That’s true but it is an exception.  There are at least other laws there which describe how law should be made.  To depart from these and from the conventions or traditions that have lasted for centuries would be a revolution.  Anyway, let’s just ignore the Brits for the time being.

Stephen Bottomley: Good plan.  So where are we?  We know that for it to be a law it has to be constitutional.  

Stephen Parker: We could also say that the law must be publicly stated.  The word often used is “promulgated”.  If it were made in secret then no one would know to obey it.  Most people have heard the phrase ignorance of the law is no excuse.  Well it would be an excuse if you could not possibly have known about it.  This is going to come up in future episodes because law is so complex, and there is so much of it, that in practical terms most people can’t actually know all the laws that govern their actions.

Stephen Bottomley: I guess another consequence of this is that you can’t bring in a law and make it apply to a time before it was brought in.  Otherwise it would not have been “promulgated” at a time when people made their decisions.

Stephen Parker: Yes, that’s right.  Laws should not normally be retrospective.  There are some situations where a serious mistake or oversight has to be corrected.  And there are some areas where a law can be applied back to the date a government said it was going to legislate, but it’s a slippery slope and the courts don’t like this.  It’s going to come up when we look at mass miscarriages of justice where the simplest way of sorting them out is to say that some conduct was not illegal even though at the time it was ruled to be illegal.  We’ll come to this.

Stephen Bottomley: Ok.  Let’s re-group.  The rule of law is primarily about governments governing under laws which were made constitutionally and publicly, designed to regulate future conduct (including their own) rather than past conduct.

Stephen Parker: You wonder why it took centuries of conflict to produce this very simple proposition.

Stephen Bottomley: Ah well, this is where we get to the good stuff.  

The fight for the rule of law was not only a fight against despotic kings of England and their counterparts elsewhere.  It was also a fight for equality, rights and a deep sense of justice.

Stephen Parker: Democracy?  

Stephen Bottomley: Tricky.  Several countries had what we would call the rule of law long before they became democracies, in the sense of every adult having a vote.  Possibly behind it all is the requirement of legitimacy.  These days people in the countries we are talking about would not think a law is legitimate unless it was made under a democratically decided constitution and by a democratically elected government.  The past may have been different.

Stephen Parker: Let’s get a bit controversial then, and bring up the question of where the rule of law does not exist.

Stephen Bottomley: It’s probably easier to answer this by looking at which countries are democracies.  The Economist magazine has an Intelligence Unit which scores the world’s 167 countries in a democracy index.  On this basis we can say that only about half of these countries pass the threshold of being a democracy.  There are some that appear to hold elections but those elections are very flawed or can be overturned by a superior power such as a religious leader.

Stephen Parker: I think this brings it home that unless you can regard a country reasonably as a democracy then they couldn’t possibly have the rule of law,  they just have the rule of the powerful calling their decisions laws.

Stephen Bottomley: Now let’s look back to the central idea that governments must govern under law.  What happens if a government doesn’t?  Who does anything about it?

Stephen Parker: This brings us to the courts and judges.  Basically people must be able to challenge a law or an action before an independent court.  A court that is separate from the government and not bound to follow its wishes.

Stephen Bottomley: Yes, an independent judiciary is central to the rule of law in action.  Usually that independence is guaranteed in the Constitution but it needs to be a reality, not just a paragraph.  We are going to come to this in episodes about courts and judges.  The pointy end is that in Australia the High Court can and does make decisions that the government of the day strongly disagrees with.  There are some countries where it is inconceivable for a court to go against the strongly held wishes of the people in power.  They do not have the rule of law, whatever they may say.

Stephen Parker: Maybe we could say at this stage that there has to be some separation of power between law-making, governing and deciding on legality.  Parliaments make laws, usually which have been proposed by governments in the form of ministers, and courts decide disputes about them, independently from parliaments and governments.

Stephen Bottomley: So the rule of law in modern times leads us to democracy and the separation of powers.  That’s a lot of baggage for four words.

Stephen Parker: There’s plenty more baggage yet to come.  Suppose the law-making process is hijacked by interest groups.  Suppose judges are chosen because they are friendly with the type of people in government.  Suppose some people could never afford to go to a court. And there is the question of whether judges make law as well as parliaments.  How does that meet a rule of law test?  Even trickier,  suppose a law is passed that a significant section of the population think is unjust because it breaches their fundamental rights?  

Stephen Bottomley: We are going to look at all these issues, including whether the “law” in “the rule of law” has to pass some substantive tests of justice, not just procedural ones.

Stephen Parker: I think we need a podcast series.

Stephen Bottomley: Ok then.