The Principles of the Rule of Law
Sir Ninian Stephen identified four of the principles which are embodied in the spirit of the rule of law when he said:
"The first of the four principles is that government should be under law, that the law should apply to and be observed by government and its agencies, those given power in the community, just as it applies to the ordinary citizen; the second is that those who play their part in administering the law, judges and solicitors and barristers alike, should be independent and uninfluenced by government in their respective role so as to ensure that the rule of law is and remains a working reality and not a mere catch phrase; the third is closely associated with the second, it is that there should be ready access to the courts of law for those who seek legal remedy and relief; the fourth is that the law of the land, which rules us, should be certain, general and equal in its operation. "
Source:1999 Annual Lawyers Lecture St James Ethics Centre.
Rule of Law – Not by Law
Sir Ninian Stephen also said in that address:
One thing is very certain about the rule of law in the sense in which we use the expression in western democracies: it is that it does not simply mean rule by law, it is not merely the opposite of the lack of law, of anarchy. As Professor Walker points out in his text on the rule of law, jurists in Hitler’s Third Reich and in fascist Italy claimed them to be more entitled to be called law-states than the liberal democracies because in both nations more human relations were regulated by the law than ever before. Yet each of them was the very antithesis of a state which observed the rule of law
The rule of law is not the systematic and constant application of laws – that is rule by law, not the rule of law.
The Rule of Law in Action
Chief Justice Spigelman of the New South Wales Supreme Court has said:
There has been a substantial investment in the promulgation of laws with a reasonable degree of accessibility, in the sense of being public and ascertainable, and of certainty and coherence. Most often, the missing factor is enforcement.
All of the other values associated with the rule of law such as accessibility, certainty, stability, etc. of little moment if the practical significance of the law is not high. There must be a narrow gap between, as it is sometimes put, ‘law on the books’ and ‘law in action’. Unless this gap is a narrow one, then the rules contained in law will not provide a clear signal about what is permitted and what is proscribed. Persons will never acquire the requisite degree of security and predictability in their dealings with others.
A State cannot claim to be operating under the rule of law unless laws are administered fairly, rationally, predictably, consistently and impartially. Improper external influences, including inducements and pressures, are inconsistent with each of these objectives.
Fairness requires a reasonable process of consideration of the rights and duties asserted. Rationality requires a reasoned relationship between the rights and duties and an outcome. Predictability requires a process by which the outcome is directly related to the original rights and duties. Consistency requires similar cases to lead to similar results. Impartiality requires the decision-maker to be indifferent to the outcome.
Improper influence, whether political pressure or bias or corruption, distorts all of these objectives. So, of course, does incompetence and inefficiency.
Source: Address at International Legal Services Advisory Council Conference 20 March 2003.
The 2009 Qatar Law Forum
The Qatar Law Forum was held from 28 May to 1 June 2009 with the principal topic being the rule of law.
Lord Phillips (President-elect of the new Supreme Court of the UK) gave the initial presentation. He advanced six propositions which he considered were at the heart of the success or failure of the rule of law. These include:
- Everyone shares responsibility for maintaining the rule of law
On this Lord Phillips said:
The rule of law is not just the responsibility of our political leaders, although the responsibility starts with them, nor just of our judges, lawyers and legal academics. It is the responsibility of all, of every policeman, teacher, soldier, immigration officer, company director, religious leader, civil servant, journalist – indeed of every citizen.”
- The rule of law requires constant vigilance
On this Lord Phillips said:
The rule of law is never negotiable. It is not a luxury item that can be put away in the cellar in times of emergency, to be brought out again when things get better. Neither the government nor the citizen can be permitted to believe that fighting terrorism is more important than observing the rule of law. Upholding the rule of law is a vital part of the fight against terrorism, for the real battle is one of ideology, not of arms.
For the relevance of the rule of law to the constitution, civil law, judicial matters and the separation of powers, see the Key Documents.
Judicial Reflections on the Rule of Law