The rule of law represents one of the most challenging concepts of the Constitution. The rule of law is a concept that is capable of different interpretations by different people, and it is this feature that makes an understanding of the doctrine elusive. Of all constitutional concepts, the rule of law is also the most subjective and value-laden. The apparent uncertainties in the rule of law and its variable nature should not cause concern, although, inevitably, it will cause some insecurity.
In the study of the rule of law, it is more important to recognize and appreciate the many rich and varied interpretations that have been given to it, and to recognize the potential of the rule of law for ensuring limited governmental power and the protection of individual rights, than to be able to offer an authoritative, definitive explanation of the concept.
The rule of law may be interpreted either as a philosophy or political theory that lays down fundamental requirements for law or as a procedural device by which those with power rule under the law. The essence of the rule of law is chat of the sovereignty or supremacy of law over may The rule of law insists that every person irrespective of rank and status in society be Subject to the law. For the citizen, the rule of law is both prescriptive dictating the conduct required by law, and protective of citizens demanding that government acts according to law.
This Central theme recurs whether the doctrine is examined from the perspective of philosophy, political theory, or from the more pragmatic vantage point of the rule of law as a procedural device, The, rule of law underlies the entire constitution and, in one sense, all constitutional law is concerned with the rule of law. The concept is of great antiquity and continues to exercise legal and political philosophers today.
The rule of law cannot be viewed in isolation from political society. The emphasis on the rule of law as a yardstick for measuring both the extent to which government acts under the law and the extent to which individual rights are recognized and protected by law is inextricably linked with Western democratic liberalism.
In this respect, it is only meaningful to speak of the rule of law in a society that exhibits the features of a democratically elected, responsible, and responsive government and a separation of powers, which will result in a judiciary that is independent of government. In liberal democracies, therefore, the concept of the rule of law implies an acceptance that law itself represents a ‘good’; that law and its governance are a demonstrable asset to society.
Contrasting Attitudes to the Rule of Law
It should not be assumed that this acceptance of law as a benevolent ruling force is universally accepted. In differing societies, subscribing to very different political philosophies, the insistence on the rule of law in the Western liberal sense has little application. For example, from 3 Marxist perspectives, the law serves not to restrict government and protect individual rights but rather to conceal the injustices inherent in the capitalist system.
Accordingly, the concept of the rule of law denoting some form of morality in law represents no more than a false idealization of law designed to reinforce the political structure and economic status quo in society. Echoes of this thesis dominate the more moderate socialist conceptions of the rule of law and the critique of liberalism. It can be argued from the socialist perspective that liberalism pays too little regard to true equality between persons and to pay attention to the protection of property interests. The liberal domain thus becomes one which again, masks true social and economic inequality while at the same time proclaiming equality and justice under the rule of law.
The rule of law, as understood in liberal democracies, also has little relevance in a totalitarian scare. While it is true that such a state will be closely regulated by law, there will not be government under the law as adjudicated upon by an independent judiciary which is insisted upon under the liberal tradition.
In traditional Oriental society, the Western preference for law is an alien notion. By way of example, about traditional Chinese society, David and Brierley write:
For the Chinese, legislation was not the normal means of guaranteeing a harmonious and smooth-working society. Laws, abstract in nature, could not take into account the infinite variety of possible situations. Their strict application was apt to affect man’s innate sense of justice. To enact laws was therefore considered a bad policy by traditional Chinese doctrine. The very exactitude which laws establish in social relations, and the way in which they fix the rights and obligations of each individual, were considered evils, according to the Chinese, not benefits. The idea of ‘rights’, an inevitable development of the laws themselves, ran counter to the natural order. Once individuals think of their ‘rights’ there is, it was thought, some form of social illness; the only true matter of concern is one’s duty to society and one’s fellow men.
The enactment of laws is an evil, since individuals, once familiar with them, will conclude that they have rights and will then be inclined to assert them, thereby abandoning the traditional rules of propriety and morality which should be the only guides to conduct. Legal disputes become numerous, and a trial, by reason of its very existence, is a scandalous disturbance of the natural order which may then lead to further disturbances of the social order to the detriment of all society.
In Japan, despite the nineteenth-century adoption of codes based on French and German models, law, in the Western sense, remained largely irrelevant to traditional Japanese life:
Still essential for the Japanese are the rules of behavior for each type of personal relation established by tradition and founded, at least in appearance, on the feelings of affection uniting those in such relationships. A person who does not observe these rules is seeking his own interest rather than obeying the nobler part of his nature; he brings scorn upon himself and his family. Apart from the contracts arising between important but depersonalized business and industrial concerns, one does not attempt to have one’s rights enforced in a court of law even though this is permitted by the various codes.
As the notion of the rule of law is dependent upon the political foundations of a state, so, too, it is dependent according to the approach adopted to the concept upon a nation’s economic resources. It may be that law, as a mere regulator of individual behavior, is perfectly feasible in an impoverished state, and accordingly, a state that maintains law and order, and no more, conforms to a narrow interpretation of the rule of law that insists simply on a citizen’s unquestioning compliance with rules of the law.
However, if the rule of law implies more than mere regulation by law and is elevated to a theory guaranteeing freedom from hunger and homelessness and entitlement to a basic decent standard of life, then economic conditions are of Paramount importance to conformity with the rule of law.
Such an approach is adopted by the International Commission of Jurists, which in the New Delhi Declaration of 1959 included alongside traditional civil and political rights the realization of social, economic, cultural, and educational standards under which the individual could enjoy a fuller life within the ambition of the rule of law.
On the other hand, reasoning such as this is anathema to radical conservatives such as Friedrich Von Hayek (1944), who viewed the correct role of government as being best confined to establishing clear, fixed rules of law that ensure maximum economic freedom for individuals, unimpeded either by planning controls or ideas of redistribute justice.
From Von Hayek’s perspective, the rule of law requires no more than the existence of a stable set of minimum rules that are to be applied in a uniform, non-discretionary manner. A legal system is viewed as just and in conformity with the rule of law if it exhibits both these features and an absence of discretionary rules or practices.
Uncertainty in the Western Rule of Law
An understanding and appreciation of the rule of law is both politically and culturally dependent. Moreover, it is also clear that the rule of law has more than one meaning, even within the Western liberal tradition. To some theorists, the rule of law represents an aspirational philosophy; to others, no more than a device under which compliance with law good or bad in content is secured. It has been remarked that:
It would not be very difficult to show that the phrase ‘the rule of law’ has become meaningless thanks to ideological abuse and general over-use.
Partly as a result of such ‘over-use’, some writers have refuted the claim that the rule of law represents anything other than a purely procedural or formalities device. By way of example, Raz writes that the rule of law:
. .. Says nothing about how the law is to be made: by tyrants, democratic majorities, or any other way. It says nothing about fundamental rights, about equality, or justice.
Contrast such views with those expressed in the following statement:
The rule of law is a rare and protean principle of our political tradition. Unlike other ideals, it has withstood the ravages of constitutional time and remains a contemporary clarion-call to political justice. Apparently transcending partisan concern, it is embraced and venerated by virtually all shades of political opinion. The rule of law’s central core comprises the enduring values of regularity and restraint, embodied in the slogan of a government of laws, not… men.
In light of such divergent assessments, it must be recognized that any attempt to align the rule of law with a broad philosophical doctrine or indeed with any other interpretation is likely to meet with opposition from some quarters. Notwithstanding such criticisms, the rule of law retains a secure grasp on political and legal thinking, in the words of Raz (1979), it has enduring importance as a central artifact in our legal and political culture.
The Rule of Law as Philosophical Doctrine
The rule of law is an aspect of ancient and modern natural law thought. In essence, the natural Jaw tradition of which there are many strands insists that the authority of law derives not from the power of any political ruler, but from a higher source, either theological or secular. The laws of man must be evaluated against the dictates of this ‘higher’ form of law. It is impossible to provide more than a mere sketch of the rich history of natural law in Western philosophy and political thought and the legacy it gives to modern constitutions. Nevertheless, a basic understanding of its nature and evolution is instructive, for it reveals how the requirements of good law morally worthwhile law have been stipulated over centuries.
Natural Law in Ancient Greece and Rome
Aristotle stated in The Politics that the rule of law is preferable to that of any individual. The appeal to law as a control over naked power has been apparent throughout history. At a philosophical level, the natural law tradition, whether theological or secular, instructs that the power of man is not absolute, but is rather controlled and limited by the requirements of a higher law.
To the ancient Greeks, man was under the governance of the laws of nature the natural forces that controlled the universe although this view is more closely aligned to the ‘law of nature’ than ‘natural law’ as it came to be understood in later times. However, from the time of Socrates, Plato (427-347 BC), and Aristotle (384-322 BC), the quest for virtue or goodness or justice under the law has been a recurrent theme. Socrates, a teacher and philosopher, was accused, tried, and convicted by the grand jury of Athens for corrupting youth with his teachings.
Despite the possibility of escape, Socrates chose to accept the verdict of death which had been imposed upon him, to demonstrate his fidelity to the law. When pressed by Crito to escape, Socrates considered the questions that would be put to him by the laws and constitution of Athens were he to succumb to the temptation to escape the penalty of the law:
Can you deny that by this act [of escaping) which you are contemplating you intend, so far as you have the power, to destroy us, the laws, and the whole state as well? Do you imagine that a city can continue to exist and not be turned upside down, if the legal judgments which are pronounced in it have no force but are nullified and destroyed by private persons?
In submitting to death, Socrates was doing nothing other than giving recognition to the supremacy of law to the rule of law. An early and famous formulation of the dictates of natural law was offered by Cicero (106—43 BC):
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its Commands or prohibitions upon good men In vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of It, and It is impossible to abolish it entirely.
We cannot be freed from its obligations by the Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.
Christian Natural Law Thought
The scriptures and gospel provided the basis for Christian natural law thought which developed in the Middle Ages. Natural law was perceived as God-given, communicated to man by Revelation, and remaining binding upon man and unchanging in its content. As a result, the dictates of natural law take precedence over man-made laws. If the demands of the state conflict with the laws of God, the obligation to God must prevail. Undoubtedly, the most powerful writing of the Middle Ages comes from St Thomas Aquinas (1225-74):
This rational guidance of created things on the part of God . . . we can call the Eternal Law.
But, of all others, rational creatures are subject to divine Providence in a very special way; being themselves made participators in Providence itself, in that they control their own actions and the actions of others. So they have a share in the divine reason itself, deriving therefrom a natural inclination to such actions and ends as are fitting. This participation in the Eternal Law by rational creatures is called Natural Law.
In the thirteenth century, Bracton proclaimed that the King himself ought not to be subject to man but subject to God and to the law because the law makes him King (1968-77, f5 b). In 1534, Thomas More (1478-1535) at the cost of his life refused to recognize Henry VIII as head of the Church, thereby acknowledging the higher duty of obedience to God rather than the rule of his temporal King.
Natural Law and International Law
On an international level, natural law thought played a significant role in establishing the overarching dictates of international law. Grotius (1583-1645), for example, maintained that natural law was discernible by man by his rationality and that a system of natural law would accordingly exist independently of theological perceptions and dictates. In short natural law would exist even if God did not exist. In addition to the insistence on rationals the emphasis of natural law at this time started to focus on the individual, and from this period discerned the origins of assertions of the rights of man.
AP d’Entreves writes:
.. When we read the American or the French Declarations we know that we are confronted with s complete architecture, about the style of which there can be no mistake. It Is a political philosophy based upon a Particular notion of the individual, of society and of their mutual relationship. (1970, p 57)
The Idea of Social Contract
It is from these beginnings that the theories of social contract and the rights of man derive. The writings of John Locke and Thomas Paine are infused with the doctrine of the inalienability of individual human rights rights which transcend the law of the state, which cannot be overridden by the state, and affirm the supremacy of the law of the state with the important proviso that the law of the state complies with natural law.
Natural Law and Common Law
In the West, the sovereignty of law became inextricably linked with the Christian faith. As seen above, in the thirteenth century, Aquinas asserted the overriding obligation to God, as opposed to any temporal power. In England, the break with the Roman Catholic Church in 1535 established Henry VIII as head of the English Church.
By assuming supreme power over both spiritual and secular matters, Henry VIII ostensibly broke the logical separation of duty towards God and the duty owed to the King: obedience to the sovereign now became a religious as well as a political duty.
The execution of Sir Thomas More in 1535 is illustrative of the King’s reaction to an individual refusal to recognize the absolute supremacy of the King. Nevertheless, natural law thought continued to permeate the common law of England before the settlement of 1688 and the rise of parliamentary sovereignty.
One of the classic exponents of the demand for the King to be subject to the law rather than above it was Sir Edward Coke (1552-1634), whose struggle with the King led to his dismissal as Chief Justice in 1616. James I viewed himself as imbued with ultimate power, derived from God under the prerogative. To Coke, laws derived from parliament comprising the King and the three estates of the realm the Lords Spiritual, the Lords Temporal, and the Commons. The power of parliament was subject to the common law, and hence it was that Coke declared:
It appears in our books that in many cases the common law will control the Acts of Parliament and sometimes adjudge them to be utterly void; for when an Act of Parliament is against the common right or repugnant or impossible to be performed the common law will control it and adjudge such Act to be void.
When, in 1608, Coke told the King that the common law protected the King, the King regarded his speech as traitorous, proclaiming that The King protected the law, and not the law the King. Coke’s insistence on the supremacy of common law was not pure natural law thought, but rather the philosophical view of the power of legal reasoning deriving from precedent. Indeed it was the King who claimed natural law as being on his side, claiming that the King was hot ignorant of any points of law which belong to a King to know.
Sir Francis Bacon (1561-1626) favored the King’s view, seeking to limit the power of the judges: it was for the King to formulate policy and make law (Advancement of Learning, 1605). Coke’s view nevertheless expresses an idea that is central to natural law thought, namely that there is higher authority based on moral judgment than the law of man.
The control of the Prerogative power of the King was to dominate English constitutional development until 1688. With the settlement of 1688 and the Bill of Rights 1689, the doctrine of parliamentary supremacy over the King, the prerogative, and common law was established. Thereafter, there were to be no assertions of any overriding higher law. The judges bowed to the sovereignty of parliament.
The Rule of Law as Political Theory
Liberalism, Conservatism, and the Rule of Law
The rule of law has been subjected to analysis by political theorists of all persuasions. From the vantage point of the liberal democrat, the rule of law will ensure the minimum rules in society to enable man to fulfill his life plan according to law, but with the minimum interference of law. AV Dicey’s writing on the rule of law has had a lasting influence on constitutional thought. His writing will be considered in detail below.
However, Dicey has been criticized by Sir Ivor Jennings for being motivated, in his writings, by his conservative views. Dicey, in expressing his preference for clear and stable rules and the minimum of discretion within the legal process, was, according to Jennings, revealing his conservative preference for certainty within the law rather than concern for the law being directed towards social justice which necessarily entails much discretionary power in the application of broad rules.
Jennings writes that Dicey was concerned not with clearing up the nasty industrial sections of the towns, but with the liberty of the subject’. For Jennings, Dicey’s view that Englishmen are ruled by the law, and by the law alone is not enough:
The powers of Louis XIV, of Napoleon I, of Hitler, and of Mussolini were derived from the law, even though that law be only ‘The Leader may do and order what he pleases’. The doctrine involves some considerable limitation on the powers of every political authority, except possibly (for this is open to dispute) those of a representative legislature. Indeed it contains, as we shall see, something more, though it is not capable of precise definition. It is an attitude, an expression of liberal and democratic principles, in themselves vague when it is sought to analyses them, but clear enough in their results.
For Jennings, the doctrine implies, first, that the state as a whole must be regulated by law secondly, that the separation of powers is implied within the doctrine to prevent dictatorship or absolutism. Accordingly, there are incorporated certain basic requirements of the law, equality before the law; clearly defined police powers; clear general rules adjudicated upon by the courts; non-retrospective penal statutes; and the strict construction of penal statutes. Thirdly, the doctrine incorporates the principle of equality, a notion which Jennings concedes is as vague as that of the rule of law itself (1959b, p 49). Moreover, and of prime importance, the rule of law implies the notion of liberty.
Marxism and the Rule of Law
Arguments against a formalist perception of the rule of law adopted by, inter alia, Dicey and von Hayek present a formidable target for attack from a Marxist perspective. Where liberalism insists that law is neutral between persons and classes and favors maximum liberty for all under the law, Marxism insists that law represents the interests of the powerful within society.
Law is an ideological device engaged by those with power to mask the reality of that power in society, and the correlative powerlessness of the ordinary citizen. The rule of law is thus portrayed as a means of subterfuge, it is a mere pretense which hides injustice.
Marxism stands in opposition to liberalism and yet, paradoxically, seeks as its result the complete liberty of man. Law, from a Marxist perspective, is the reflection of economic power within society, a power that is used to exploit the powerless.
Thus it is that, under capitalism, the worker is not rewarded with the full value of his labor, rather, he receives a price for his labor which is added to production costs and profits and together comprise the final price of a product. The laws which regulate factories and employment terms are all underpinned by the acceptance of the capitalist ideal.
Laws that ameliorate the conditions of the poor do not represent as appears at first sight real social justice, but rather they represent a calculated means by which the poor are kept compliant within their powerlessness. Accordingly, the welfare state is but a cynical mask for the maintenance of the status quo which defeats the movement toward revolutionary economic and social change:
Far from hastening the revolution, the welfare state undermines efforts to create working class solidarity. By preventing the fullest development of the material degradation of the working class and by providing a limited immunity from the vicissitudes of economic crises, a welfare state delays the formation of class consciousness and thus prevents a revolutionary situation from arising.
Whether law serves to oppress or merely to uphold the economic status quo and there exists dispute on this matter between Marxists themselves law, from a Marxist perspective, does not serve the interests of all in society. The rule of law thus becomes a grand slogan under which is hidden the reality of oppression and absence of liberty. The capitalist’s insistence on the rule of law is seen as a ‘fetishism’ that must be removed along with economic oppression. Only when the capitalist system breaks down, and the law which serves it ‘withers away’, will society become truly free. When that occurs, there will be no need for law and man will achieve true freedom.
PROFESSOR JOSEPH RAZ AND THE RULE OF LAW
Professor Joseph Raz approaches the rule of law from a morally neutral but conceptual stand Point and asserts that:
The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. That much is common ground. It is also to be insisted that the rule of law Is just one of the virtues which a legal System may possess and by which It is to be judged. 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 nondemocratic 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.
Raz acknowledges that his claim will ‘alarm many’, but insists that it presents a coherent view of one important virtue that legal systems should possess. In seeking to elucidate the ideal of the rule of law, Raz draws the analogy between the rule of law and a knife. One quality of a good knife is sharpness. However, the quality of sharpness says nothing as to the use to which the knife might be put: beneficial surgery or murder. Sharpness is morally neutral. And thus it is with the rule of law.
However, the purpose of the law is to enable citizens to live within the law. Accordingly, certain principles must be respected if that goal is to be fulfilled. For the rule of law to exist in society, certain qualities must be present. The law must be clear if it is to be capable of being obeyed. In Merkur Island Shipping Corporation v Laughton (1983), for example, Lord Donaldson MR stated that:
The efficacy and maintenance of the rule of law, which is the foundation of any parliamentary democracy, has at least two pre-requisites. First, people must understand that it is in their interests, as well as in that of the community as a whole, that they should live their lives in accordance with the rules and all the rules. Secondly, they must know what those rules are…
Lord Donaldson’s view was endorsed by Lord Diplock in the House of Lords:
Absence of clarity is destructive of the rule of law; it is unfair to those who wish to preserve the rule of law; it encourages those who wish to undermine it.
The law must be publicized so that citizens are aware of its demands; reasonably stable so that citizens can plan their lives according to the law; perspective so that the law does not require the impossible, non-contradictory for the same reason, and, in addition, the courts must be accessible and staffed by an independent judiciary.
Compliance with each of these requirements will indicate that a society respects the rule of law. To make such a statement is not to say that the legal system is necessarily morally good. As seen in Raz’s illustration of the quality of sharpness of the knife, the fact of sharpness does not dictate the morality of the purposes to which the knife will be put. It is possible, accordingly, for the rule of law to exist without the legal system necessarily pursuing morally good ends.
Professor Lon Fuller and the Rule of Law
The writing of Professor Lon Fuller (1964) who stands in contrast to Raz may be invoked here to develop further this idea. Fuller’s focus is on the morality of law. For Fuller, the requirements of the law, which are substantially the same as those of Raz, lay down the basic minimum requirements, not just of a system by the rule of law, but for the very existence of a system to which he would accord the label ‘legal’. These basic prerequisites form the ‘morality of duty’ or inner morality of law.
These principles provide the basic foundations of a legal system. To draw an analogy with building construction, failure to lay sound foundations will result in the edifice resting on an insecure and fragile base. In addition to a secure foundation, for a legal system to be worthy of recognition ~ and to impose the duty of obedience upon its members it must serve the needs of the people.
Law does not exist in a vacuum separate from the society it regulates. Recognition of this vital characteristic of law demands that the legal system be directed towards altruistic, beneficial ends. This is the morality of aspiration cowards which each valid legal system must strive for.
Thus, a government must seek to provide the environment in which each citizen may realize his or her maximum potential and the rational plan of life to which he or she aspires. Society must be free and directed to the good of each of its members. Any government that fails to a material degree to meet these requirements may fail to deserve the label of a legal system.
The important point here is that Fuller is quite prepared to argue that a system of government that contravened the basic requirements of a ‘good’ system of law might be recognized as some form of governmental regime but would not be a government according to law, and hence would not be a ‘legal’ system. To deserve recognition as a system of law, the system must respect the very fundamental moral requirements that Fuller identifies.
Professor HLA Hart has argued that even a dictatorial regime with no respect for morality or fundamental rights would be capable of meeting Fuller’s requirements. Fuller disputes this, arguing that an evil regime, such as that of Nazi Germany, sooner or later would be compelled to pass retrospective law or secret laws to pursue its evil objectives.
Moreover, Fuller argues that there is an additional quality of morality that must be present in a system of law: that the law serves the interests of the people it governs. Thus, the law must pursue altruistic moral ends if it is to have recognition. If it is not, then Fuller would have no difficulty in denying that a ‘legal system’ existed at all.
Raz rejects the linkage between the rule of law and morality and claims that Fuller’s thesis fails to establish a necessary connection between law and morals. And yet, for some, the distinction may be a fine one.
Friedrich Von Hayek and the Rule of Law
A further perspective of the rule of law is provided by Friedrich von Hayek. The Road to Serfdom was written against the background of the Second World War and expressed von Hayek’s fundamental concern with the prospect of the expansion of the state. This von Hayek opposed, other than at a basic level necessary to guarantee freedom, and von Hayek describes the rule of law in the following manner:
… Stripped of all technicalities this means that government in all its action is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.
The idea of a welfare state and the entailed notion of distributive justice which entails the state Operating under discretionary rules to provide a minimum standard of living was firmly opposed by von Hayek. The rule of law, for von Hayek, should be confined to the provision of clear, certain rules that would enable people to plan their lives in a free society, To require that people should contribute to the less well-off in society through a system of graduated taxation, coupled with discretion to determine entitlement and quantum of recipients, Violated his perceived ideal state.
Modern expression of many of von Hayek’s ideas is to be found in the writings of Rober, and Nozick, a clear and forceful advocate of the minimal state, Nozick rejects any concept of distributive justice. Instead, he argues for perceptions of justice based on the concept of right, expressed in the name of entitlements. A state of affairs ~ and hence a state ~ will be just if it respects the principle of entitlement. As Nozick puts it:
Things come into the world already attached to people having entitlements over them. From the point of view of the historical entitlement conception of justice in holdings, those who start afresh to complete to each according his…treats objects as if they appeared from nowhere, out of nothing.
Justice therefore lies in the recognition of the justice of holdings. If how property is acquired is lawful, if how property is transferred is lawful, the society will be just, To deny the justice of this situation from a Nozickian perspective and to argue for the forced redistribution of wealth in society, is to defeat the rights of the individual property holder.
John Rawls’s Theory of Justice and the Rule of Law
Opposed to von Hayek and Nozick stands John Rawls, whose Theory of Justice provides a detailed exposition of, and justification for, the interventionist state committed to distributive justice. In essence, a society will be ‘just’ if it is organized according to principles established by all its members in the ‘original position’ behind a ‘veil of ignorance’. Suffice to note here that the ‘original position’ and ‘veil of ignorance’ relate to a stage of decision-making about constitution arrangements wherein the participants know nothing of their attributes and wants and are oblivious to the society in which they live. They will accordingly choose principles of justice that are not self-interested but based on maximizing the position of those persons (of whom the decision maker may turn out to be but one) who are in the least enviable position in society. The principles they will choose will be, first, the priority of liberty for all, subject to the need (0 redistribute goods in society to improve a lot of the worst off.
The rule of law, according to Rawls, is closely related to liberty (1973, p 235): Rawls calls for the regular and impartial administration of public rules, which is the essence of a just legal system characterized by the legitimate expectations of the people. Several requirements must be met: rules of law must only command action which is possible; those who enact laws must do 80 in good faith; like cases must be treated alike. Echoing Dicey, Rawls states that there is 00 offense without a law nulla poena sine lege and this requirement in turn demands that laws be known, that they be general, and that penal laws should not be retroactive to the disadvantage of those to whom they apply. Finally, the legal system must respect the dictates of natural justice.
Law and Order and the Rule of Law: the Obligation to Obey Law
An alternative perception of the rule of law may be labeled the law and order model. This view emphasizes the peaceful settlement of disputes without recourse to violence, armed force, or terrorism. In legal philosophy, the idea of absolute obedience to law is compatible with the analytical, positivist school of thought which dominated much jurisprudence from the nineteenth century until after the Second World War.
Positivism is the antithesis of natural law, The primary quest for positivists is to separate legal and moral issues: to distinguish between the is (that which exists as fact) and the ought (that which is desirable). Under positivist theory which is primarily concerned with explaining the law as it exists in fact where valid law exists, that is to say, a law which is accorded validity under the fundamental constitutional rule in a state, there is an obligation on each citizen to obey that law. Hans Kelsen and other legal positivists regard the duty to obey validly created norms as absolute.
Taken to its logical conclusion, however, the law and order view can lead to the repression of freedom. By way of illustration, it is a common cry of politicians that a demonstration by, for example, trade union members or students, contravenes the rule of law. In a strict sense, any action which involves protest will almost inevitably violate some legal rule whether it is the rule protested against or otherwise.
Public protest, for example, will often involve breach of rules against obstruction of the highway, of the police in the execution of their duty, trespass, or criminal damage, even though those laws are not the object of the protest. It becomes necessary, therefore, to consider albeit in outline the nature of an individual’s obligation to obey valid law.
The fundamental question in this regard lies in the extent to which citizens should be coerced into obedience to unjust laws. Is there an absolute obligation to obey, irrespective of the quality of the law? Is the duty only prima facie? Is there ever a duty to disobey the law in pursuit of a higher ideal? Each of these vast and timeless philosophical questions underpins the concept of the rule of law.
is there a duty to obey the law?
To be balanced against the arguments for absolute obedience to law is the legitimacy of protest within society. Since the time of Aristotle, it has been argued that the law must be tempered with equity, which dictates the standards of justice and rightness in society. Law derives its authority from the obedience of the people.
Laws must be directed to the ‘good’, not only to comply with the dictates of morality but also for the more pragmatic reason of ensuring voluntary compliance with the law. It may be argued that nowadays in a responsive, democratic state, any dispute as to the rights of individuals and grievances against government action will be dealt with through the provided channels of complaint, for example through the individual’s Member of Parliament or an investigation by the Commissioners for Administration.
Alternatively, it may be argued that if many citizens are commonly aggrieved, the media can be employed to influence the Government and that, ultimately, at least once every five years, the electorate can express its Views through the ballot box. None of these avenues, however, may yield the desired result, particularly if the aggrieved individual or group is a minority without popular support.
Is there a right to disobey the law?
The question that then arises is whether the individual has a right to disobey the law. A government true to democratic precepts of representatives and fairness must be sensitive to demands for change. If it fails in that regard, it is at least arguable that demands for change, while entailing technical breaches of the law, should be accommodated within the constitutional framework.
In 1848, Henry Thoreau refused to pay taxes to support the slavery laws and declared, that the place for a just man in such a community was in jail.
In the same century, the suffragette movement resorted to unlawful behavior in the ultimately successful pursuit of the right to enfranchisement and the right to vote. Mahatma Gandhi’s peaceful civil disobedience campaign led to the independence of India in 1947. The Civil Rights movement in the United States in the 1950s, led by Martin Luther King, resulted in reforms of the law concerning racial segregation. The tide of protest over American involvement in the Vietnam War had a direct impact on government policy and further raised legal and political interest in civil disobedience.
Major social changes of such magnitude would have been impossible without recognition that under certain limited conditions, there exists a right of legitimate protest, however inconvenient and uncomfortable this is for governments. The law and order model of the rule of law would fail to respect any such ‘right’, and the reaction may be one of repression. However, it is not necessary to look to such major societal changes brought about by defiance of the law to refute the ‘law and order’ model and proclaim some entitlement to dissent.
John Rawls concedes a right to disobedience in pursuit of changing a society’s sense of justice but confines civil disobedience to peaceful protest. Rawls’s thesis is founded on the notion of social contract. That concept, as has been seen above, involves the mutual recognition, inter alia, of the rights of citizens and the rights of the state. The extent to which citizens participate in the law-making process is critical to an understanding of the extent to which there exists an obligation to obey the law.
Participation in the democratic process may, however, be used as a means to deny any right to disobey. That is to say, it may be argued that democratic participation implies the individual’s acceptance of all laws within the state. Here we must consider what it is that citizens consent to when electing a government. It seems implausible
to argue that we each consent to every action of government throughout a possible five-year term of office, irrespective of its merits. However, Professor Plamenatz states that when a vote is cast:
… you put yourself by your vote under an obligation to obey whatever government comes legally to power under the system, and this can properly be called giving consent. For the purpose of an election is to give authority to the people who win it and if you vote, knowing what you are doing and without being compelled to do it, you voluntarily take part in the process, which gives authority to those people.
This argument surely is contentious and represents a very limited view of the requirement that a government should have moral authority to govern. Richard Wasserstrom (1963), on the other hand, argues that, by the participatory democratic process, a prima facie obligation to obey the law is imposed, but this prima facie duty can be overridden by the demands of conscience.
The appropriate response of the state to acts of civil disobedience is a difficult matter, Professor Ronald Dworkin, for example, argues for official tolerance in the face of dissent and law-breaking which is undertaken in pursuit of rights even where violence is employed. In Taking Rights Seriously, Dworkin argues that the state should act with caution in prosecuting civilly disobedient acts. First, the state should respect the stand taken in the defense of rights, even if that stand should prove misguided when the matter ultimately comes before the Supreme Court for a ruling on the validity of the contentious legislation. The decision to prosecute should be decided based on utilitarianism.
As Dworkin states in A Matter of Principle.
Utilitarianism may be a poor general theory of justice, but it states an excellent necessary condition for just punishment. Nobody should ever be punished unless punishing him will do some good on the whole in the long run all things considered.
By prosecuting disobedience to the law, the state upholds the positive law and reinforces it. On the other hand, in prosecuting, the state may reveal the defects in the law and may be seen to be enforcing that for which there exists little or no popular support. By way of example, the acquittal of Clive Ponting on charges of breaching section 2 of the Official Secrets Act 1911 is illustrative, the jury refusing to convict despite a clear ruling by the judge as to the illegality of Ponting’s conduct. It may also be argued that by rigid enforcement the state enhances the moral claims advanced by the civilly disobedient. In part, this was the view adopted by Socrates in submitting to his fate.
He drank the hemlock to show respect to the law and constitution of Athens, although he must have known that in so doing he would bring the positive law of the state into disrepute. What he could not foresee was the timeless example that Athens, in executing Socrates, set for humanity.
is there a duty to disobey?
The converse position must also be considered: if a state violates the requirements of the rule of law, to what extent is it the duty of citizens to disobey the law? Furthermore, what justification, if any, is there for another state or the international community taking action against the guilty state? The Nazi regime in Germany provides the most obvious but not unique example. On individual duty, Professor Lon Fuller maintained that the citizen is under no obligation to obey unjust law: ‘A mere respect for constituted authority must not be confused with fidelity to law.’ Fuller goes further and asserts that an evil regime, which grossly violates the basic precepts of morality, is incapable of creating law at all.
In HLA Hart’s view, this represents confused thinking on Fuller’s part. His preferred approach is to recognize the validity of Nazi laws however abhorrent in moral terms but also to recognize that moral obligations can outweigh the legal obligation to obey. In addition to facilitating clarity about law, this approach enables, the regime to be held to account for its actions, Simply to deny as Professor Fuller that, there was any law during Nazi rule is to remove the basis for international legal sanctions,
Av Dicey and the Rule of Law
In the introduction to the Study of the Law of the Constitution, AV Dicey offered a prosaic description of the rule of law. Here, there are none of the ringing proclamations of the theological or policy philosophers. Nevertheless, Dicey’s views have continued to exert their influence, despite many challenges, and it is this influence that requires examination.
Dacey argued that the rule of law in its practical manifestation has three main aspects.
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;
No man is above the law; every man and woman, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals; and
The general principles of the constitution (as, for example, the right to personal liberty, or the night of a public meeting) are, with us, the result of judicial decisions determining the nights of private persons in particular cases brought before the courts.
Each of these points requires examination.
Lack of arbitrariness and retrospective
The first element of this analysis is self-explanatory, It requires that no one be punished except for conduct that represents a clear breach of law. Designed to deny governments any right to make secret or arbitrary laws or retrospective penal laws, and to limit the discretionary power of government, the rule protects the individual, To comply fully with this requirement, laws should be open and accessible, clear and certain.
In part, this idea ties in with that of the social contract and the reciprocal relationship between the state and the individual. Under social contract theories, the individual citizen transfers his autonomous individual rights to the government, to be held by that government on trust. To express the matter differently, the citizen owes allegiance to the Crown in return for which he is under the protection of the Crown.
The doctrine of allegiance incorporates the idea of obedience to law both on the part of the citizen and on the part of the government. Laws that are arbitrary or secret are incapable of justification based on the mandate of the people and, accordingly, offend against the reciprocal relationship on which constitutional democracy depends.
Where wide discretionary powers are conferred on the executive whether they be in the form of granting power to a minister of the Crown to act as he thinks fit or on civil servants administering the social welfare system it will be impossible for the individual to know what rights he or she has. Moreover, the delegation of broad discretionary power albeit on the authority of the sovereign parliament renders such power difficult, if not impossible, to challenge before a court of law or other adjudicatory tribunal.
If retrospective penal liability is imposed, the individual is placed in the position where his conduct was lawful at the time of his action but, subsequently, he is held responsible as if his conduct was then unlawful. An examination and evaluation of the relevance of this first proposition entails drawing on relevant illustrations from both statute and case law.
For example, the courts construe penal statutes narrowly and will be slow to find that parliament intended to impose retrospective liability. So important is the concept of mens rea in criminal law? that it will rarely be appropriate for a prosecution to succeed in its absence, and it is for this reason that the courts employ the presumption of statutory interpretation against retrospective:
Perhaps no rule of construction is more firmly established than this — that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.
In Waddington v Miah (1974), the House of Lords interpreted the Immigration Act 1971 in a manner that denied retrospective effect to criminal offenses, using, as an aid to construction, Article 7 of the European Convention on Human Rights, which guarantees freedom from retrospective.
Nonetheless, the presumption will not be available where parliament expressly provides for retrospective, as, for example, in the War Damage Act 1965 and the War Crimes Act 1991.
In Burmah Oil v Lord Advocate (1965), where the House of Lords had awarded compensation for the destruction of oil installations in wartime, the government speedily introduced legislation nullifying the effect of the decision under the War Damage Act 1965, This case demonstrates the subordination of the judiciary to parliamentary supremacy and the limits thereby imposed on the judges’ capacity to uphold rights.
Notwithstanding the general prohibition against retrospective, there may be instances Where a decision which imposes, for example, criminal liability may be upheld by the courts. For example, until 1990, there existed a time-honored exemption from the law of rape for husbands Who ‘raped’ their wives. In the case of R v R (1991), however, the House of Lords upheld the conviction of a husband for the rape of his wife, arguing that the rule against liability for tape within marriage was anachronistic.
In a challenge to this decision under the European Convention on Human Rights, on the basis that it infringed Article 7 of the Convention, which makes retrospective unlawful, the Court of Human Rights ruled that the sweeping away of husbands immunity from criminal prosecution and conviction for rape represented an evolution towards greater equality between the sexes and was consistent with that equality.
Equality before the law: government under the law
Dicey’s second limb emphasizes the notion that government itself is subject to the law and that everyone, irrespective of rank, whether official or individual, shall be subject to the law and subject to the same courts. Dicey viewed the French system of special courts to deal with complaints against the government as abhorrent, fearing that specially constituted courts would unduly favor the government over the citizens.
Dicey has often been interpreted as requiring that there be actual equality in terms of legal rights, powers, and capacities. Such an interpretation is, however, misguided. The idea of equality before the law, irrespective of status, is subject to so many exceptions that the statement is of doubtful value.
In so far as equal powers are concerned, it must be recognized that the police have powers over and above the citizen, that ministers have power to enact delegated legislation (but subject to parliamentary approval), that the Crown enjoys immunities under the law, that the government acting in the name of the Crown may exercise prerogative powers which may defeat the rights of individuals, that Members of Parliament have immunity from the law of defamation under the privileges of parliament, and that diplomats enjoy immunities not available to citizens. And, as Sir Ivor Jennings points out, no two citizens are entirely equal:
. .. pawnbrokers, money lenders, landlords, drivers of motor cars, married women, and indeed most other Classes have special rights and duties.
Against this catalog, which is not exhaustive, must be set the extent to which government and public officials are subject to the law in the sense of being accountable for their actions before the ordinary courts, for this, indeed, was Dicey’s real argument. The doctrine acknowledges the need for a consistent application of the law irrespective of status. No one is immune from criminal prosecution (other than the monarch: Against the King law has no coercive power. Official accountability to law is one of the foundations of the rule of law. Following a detailed analysis of Dicey’s writing, Professor Jeffrey Jowell concludes that:
..its ghost has refused to rest. It rises still to haunt a minister who publishes ‘guidelines’ that cut across the powers of the statute under which he operates, the minister who penalises local authorities for overspending without giving them a fair hearing, a government department which decides In accordance with a secret code not available to the public, or a Prime Minister who seeks to deprive civil servants of their rights to remain members of a trade union.
Dicey’s emphasis on government according to law on the basis that it is too narrow an interpretation:
It is a Small point upon which to base a doctrine called by the magnificent name of ‘rule of law’, particularity R is generally used in a very different sense.
TRS Allan subjects Dicey’s analysis to detailed scrutiny, focusing on Dicey’s second principle, that of equality before the law. Allan seeks a solution to the apparent paradox presented by Ducey’s insistence that both parliamentary sovereignty and the rule of law comprise the fundamental doctrines of the constitution given that the former concept is inherently capable of damaging the latter.
Towards this end, Allan presents a wealth of evidence directed to establishing a middle way between the formalism of the ‘principle of legality’ and the vagueness of the ‘broad political ideal’. In other words, what is sought is an explanation of how the power of sovereignty is restrained or restricted without expounding a complete social philosophy.
The key to such an understanding, according to Allan, lies in the role of the judiciary and in an acceptance that it is the judges who in applying the ‘juristic principle’ of the rule of law limit the power of parliament. To summarize, Allan draws on the principles of statutory interpretation in penal statutes, etc); on the independence of the judiciary as ensured by the separation of powers; on the right of access to the courts for all citizens; and on the judiciary’s reluctance for the jurisdiction of judicial review to be limited. By these and other means, Allan seeks to demonstrate that:
… the rule of law strengthens democracy by ensuring that government operates only within rules adopted or sanctioned by Parliament…
and that:
The constitutional principle of the rule of law serves, however, to bridge the gap between the legal doctrine of parliamentary sovereignty and the political doctrine of the sovereignty of the people. In interpreting statutes in conformity, so far as possible, with general notions of fairness and justice — in seeking to apply those common Standards of morality which are taken for granted in the community — the judge respects the natural expectations of the citizen.
The rule of law therefore assists in preventing the subversion of the political sovereignty of the people by manipulation of the legal sovereignty of Parliament.
To evaluate such contrasting views as those expressed above, consideration of some evidence becomes necessary.
Judicial Review
Actions for judicial review of administrative action, employing concepts of intra and ultra vires and the rules of natural justice, ensure that the executive acts within the law. Judicial review in its infancy in Dicey’s time represents how the sovereignty of parliament is upheld and the rule of law applied. Dicey, writing in 1915, analyses the significance of Board of Education v Rice (1911) and Local Government Board v Arlidge (1915), claiming that:
..each Case finally lays down, as far as the courts of England are concerned, a clear and distinct principle by which any department of the government, such for example as the Board of Education, must be guarded in the exercise of powers conferred upon it by statute.
How, and grounds upon which, judicial review may be granted are considered. It is sufficient for current purposes to note that judicial review is the means, by which administrative authorities whether ministers of the Crown, government departments, local authorities, or others with law-making and administrative powers are confined by the courts within the powers granted to them by parliament. It is for a court to determine ~ following the granting of an application for judicial review whether the body in question hag acted intra vires or ultra vires (that is, inside or outside its powers).
Judicial review is confined to matters of public, rather than private law. Thus, where a relationship between an aggrieved citizen and a body is based, for example, on the law of contract, judicial review will not lie. It is also necessary in the interests of good administration that aggrieved individuals have sufficient interest or locus standi in the matter to bring it to court.
There are numerous grounds on which judicial review may be sought. By way of illustration, a body may act ultra vires if it uses its powers for the wrong purpose, or if it abuses its powers, or if it adopts a policy that is so rigid that it fails to exercise a discretion with which it has been invested. The law imposes standards of reasonableness upon administrative bodies, and failure to act reasonably may cause a body to act ultra vires.
A body may act ultra vires if it is conferred with delegated powers but delegates them further to another. A statute may require that administrators adopt particular procedures in the exercise of these powers: should they not do so, and the procedures are judicially deemed to be ‘mandatory’ (compulsory) rather than ‘directory’ (advisory), a body will be held to be acting ultra vires.
If a public body under a duty to act fails to act at all, the court can order it to do so by a mandatory order. The rules of natural justice must also be observed in decision-making: where an individual has a right or interest at stake because of an administrative decision, he is entitled to fair treatment.
All of these grounds for review have been rationalized by the House of Lords into three principal categories: irrationality, illegality, and procedural impropriety. The powers of the court can only be exercised over matters which it is competent to determine. This introduces the concept of justiciability, and it is this latter doctrine that most particularly undermines the concept of the rule of law.
In Council of Civil Service Unions v Minister for the Civil Service, the House of Lords identified the categories of decision which would be immune from judicial review that is to say non-justifiable. Amongst these and the list is not exhaustive are the making of treaties, the dissolution of parliament, the appointment of ministers, declarations of war and peace, and matters relating to the granting of honors. What unites these categories is the fact that each involves matters of high policy which is most appropriately determined in the eyes of the judiciary not by the courts but by the executive. Where this applies, it may be said that the rule of law is undermined by respect for the doctrine of the separation of powers: an ironic consequence.
The doctrine of judicial review nevertheless represents a bedrock for the application of the rule of law, keeping those with law-making and discretionary powers within the law. From Entick y Carrington (1765) to R v Secretary of State for the Home Department expatriate Fire Brigades Union (1993), wherein Kenneth Baker, the Home Secretary, was held to be acting ultra vires when attempting to introduce a new tariff for compensation under the Criminal Injuries Compensation Scheme under the royal prerogative rather than under power conferred by statute, the principle is established and reiterated.
The Legal Process
For the rule of law to be respected and applied, the legal process civil and criminal must exhibit certain features. These features may be categorized as accessibility and procedural fairness.
Accessibility
The law must be accessible to all if rights are to be enforced. Accordingly, there must not only exist a system of courts available locally but the cost of having recourse to the courts must be such that there is real rather than symbolic access to the courts. For the law to be attainable, adequate legal advice and assistance must be provided at a cost affordable to all. The right to a fair trial is protected under Article 6 of the European Convention on Human Rights, and includes the right of the citizen:
… to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
In Granger v United Kingdom (1990), the defendant had been denied further legal aid to pursue an appeal against conviction. Granger, unable to afford legal representation, acted in person. Representing the Crown were senior government counsel. On an application under the Convention, Granger alleged that he had been denied the protection of law. The Court of Human Rights ruled that the denial of legal aid infringed Granger’s rights.
Procedural fairness
Justice and the rule of law demand that, in the conduct of legal proceedings, procedural fairness be observed, Subsumed within this requirement are many subsidiary conditions. The judge must be impartial. Where jurors are involved, they, too, must be free from bias. In addition, jurors should be reasonably representative of the society they serve. Evidence gathered by the police must be acquired by lawful means. The evidence admitted into court must be both of an admissible nature and fairly presented. The proceedings should be conducted in such a manner as to be intelligible to the parties, witnesses, and jurors.
The jury
The precise origins of trial by jury in its modern form are shrouded in mist. It is thought that, by the end of the fifteenth century, the jury, as triers of fact, was established in what today would be a recognizable form. Trial by jury for serious criminal offenses, and in civil cases where defamation, malicious prosecution, false imprisonment, and allegations of fraud are at issue, regarded as the bulwark of our liberties.
The decision of the jury is regarded as conclusive and unimpeachable. Criticisms have long been made of the lack of representatives of the jury. Several factors militate against representatives the accuracy of the electoral register from which jurors are selected; the relative lack of randomness in jury selection; the vetting of jurors; and challenges to members of the jury. Moreover, a wide range of persons are either ineligible for jury service, disqualified from sitting, or may be excused from jury service.
When a jury is summoned, the presence of a juror may be challenged for cause that is, where some fact relating to the juror is known and gives rise to a challenge. Little is known about the individual juror only the names and addresses are given. This relative anonymity of jurors contrasts starkly with the position in the United States of America, where the selection of a jury entails a prolonged inquiry into the lives and attitudes of prospective jurors.
While the process is protracted, it is designed to ensure that the jury ultimately selected will be one free from bias about the defendant. In the United Kingdom, a person may be excused from service based on personal knowledge of the case, bias, personal hardship, or conscientious objection jury service. A juror should not be excused on general grounds such as race, religion, political beliefs, or occupation.
Evidence
For the rule of law to be observed, it is of central importance that the evidence before the court be both complete and reliable. Contravention of this requirement undermines the concept of a factional. Subsumed within this question is the complex and controversial matter of the man in which evidence is obtained and the question of admissibility.
While the Police and Evidence Act 1984 went some way to improving the safeguards for the accused and was introduced, in part, to rectify deficiencies that had come to light, the cases of the Birmingham Six, the Guildford Four, and the Maguire Seven illustrated the deficiencies in the criminal justice system. In each of these cases, the defendants had served long terms of imprisonment for alleged Irish Republican Army (IRA) terrorist acts.
In each case, the evidence relied upon was unreliable. Their convictions were quashed by the Court of Appeal following years of campaigning by relatives and friends for a review of their cases. In each case, a serious miscarriage of justice occurred and as a result, the integrity of the criminal justice system was tarnished.
At common law, a confession that is improperly obtained is inadmissible. The Police and Criminal Evidence Act 1984 places this rule on a statutory basis, providing that if a confession has been obtained ‘by oppression’, the court shall not allow the confession to be given in evidence unless satisfied beyond reasonable doubt that the confession — even if true has not been obtained improperly.
Whereas the rules on the admissibility of improperly obtained confessions are relatively clear, the admissibility of other evidence obtained by either dubious or unlawful means has proved less clear and less satisfactory. Until 1979, the judges exercised their discretion as to whether or not evidence improperly acquired would be admissible.
However, in R v Sang (1979), the House of Lords ruled that no discretion existed to exclude evidence that had been obtained by unlawful or improper means. The only basis on which evidence could be excluded would be where the effect of admitting it would prove unduly ‘prejudicial’ to the defense or ‘unfair’ to admit it. The fact that the evidence was unlawfully acquired does not amount to ‘unfairness’. The admissibility of such evidence is now governed by the Police and Criminal Evidence Act 1984, which provides that the court may refuse to allow evidence if:
… it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such adverse effect on the fairness of the proceedings that the court ought not to admit it.
Evaluation of Dicey’s Equality before the Law
The evidence for the notion of equality before the law is neither clear nor un-contentious. As with so much of the Constitution, there remains room for doubt and argument. Nevertheless, it is submitted that there exists sufficient evidence to suggest that Dicey’s approach remains a fruitful avenue for inquiry and exploration. To dismiss as some writers do this aspect of Dicey’s exposition of the rule of law is to deprive the student of the constitution of a valuable tool for analysis.
The protection of rights under common law?
The third limb of Dicey’s description of the rule of law reveals his preference for common law protection of human rights over and above a specially formulated code of rights, thus demon, starting a faith in the judiciary which is not sustainable nowadays. Evaluation of this aspect of the definition must await analysis of the Human Rights Act 1998 in Chapter 18 and the scope of the protection which it gives to individual citizens.
The Human Rights Act 1998 for the first time incorporates rights protected under the European Convention on Human Rights into domestic law. Accordingly, citizens no longer have, to undertake the lengthy process of applying to the Court of Human Rights in Strasbourg, and can seek a remedy in the domestic courts.
The method of incorporation adopted, however, falls far short of enabling the judges to invalidate or set aside domestic legislation. Instead, the judges of the higher courts are empowered to make declarations of incompatibility with Convention rights.
Once such a declaration has been made, it remains for parliament to approve an amendment to the law. As a result, the Human Rights Act, far from elevating individual rights proclaimed in the Convention to a higher status than statute, preserves parliament’s sovereign law-making and amending power and also maintains the separation of powers.
Notwithstanding the Act’s status, the rule of law is undoubtedly buttressed by the Act every public body by no means a simple concept is required to comply with Convention rights, and to fail to do so is to act unlawfully save where there is no available alternative form of action because of the requirements of primary legislation.
To support rights further, the Act requires that judges interpret primary and secondary legislation so far as it is possible to do so in a manner compatible with Convention requirements. Coming into effect in Scotland in 1999 and in England in 2000, the impact of the Act has been significant and is having the effect of requiring all public bodies to scrutinize their procedures for Convention compliance or face legal action.
The Rule of Law in the International Dimension
The Universal Declaration of Human Rights of the United Nations, published in 1948, declares that:
it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
The European Convention also recognizes the concept of the rule of law. The preamble states that:
The governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law… . have agreed as follows…
On an international level, the rule of law is also advanced by the International Commission of Jurists, which strives to uphold and improve the rule of law within the legal systems of its members. The Declaration of Delhi, issued under the auspices of the International Commission of Jurists, affirms the rule of law and its value in promoting the protection of civil and political rights and links such rights with the development and protection of social and economic rights. The Congress of the International Commission of Jurists met in 1959 to clarify and formulate a supranational concept of the rule of law. The Declaration of Delhi 1959 recognized that:
… the rule of law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized . . .
Such aspirational statements recognize the need for the economic foundations to be such that the dignity of man can be a reality in society. It is meaningless to speak of the rule of law as insisting on decent, or even minimal, standards of living within the context of poverty and disease.
To secure any such standards, a sufficient level of economic wealth must be achieved. Even where such standards do exist, there will remain resistance to any formulation of social and economic rights as enforceable positive legal rights, for such formulations require the allocation of resources within society.
Whereas governments may be willing indeed obliged to respect civil and political rights in a democracy, the protection of such rights generally will be effected without significant national resource implications. The protection of freedoms, such as freedom of speech and association, requires no more than a restraint on government. The protection of social and economic rights requires positive action, at a high cost.
Conclusion
The rule of law in its many guises represents a challenge to state authority and power, demanding both that powers be granted legitimately and that their exercise is according to law. According to law means both according to the legal rules and something over and above purely formal legality and imputes the concepts of legitimacy and constitutionality. In its turn, legitimacy implies the rightness or morality of law. The law is not autonomous but rests on the support of those it governs. The law is the servant of the sense of rightness in the community, and whilst the rule of law places law above every individual irrespective of rank and station it remains paradoxically, subject to the ultimate judgment of the people.