(Address to Melbourne Catholic Lawyers Association, 16th August 2013)
I am honoured to have been asked to speak to you this evening, and to follow the long line of distinguished speakers who have addressed your previous annual dinners.
Does the “rule of law” still have meaning?
In talking tonight about the rule of law, I’m conscious that some contemporary commentators, particularly in the United States, have argued that the concept of the “rule of law” has become almost meaningless.
As Professor Jeremy Waldron put it, when writing about the way both sides of the debate over the counting of votes in the 2000 US Presidential election invoked the rule of law:
“The Rule of Law” sounded grand, certainly; but at the end of the day, many will have formed the impression that utterance of those magic words meant little more than ‘Hooray for our side!’ 1
Of course, misunderstanding or even misuse of political and legal terms of art is not new.
In discussing how poorly understood the Magna Carta has been over its 800 year history, Professor Nicholas Vincent remarked that it reminded him of how some workers in the north of England in the 1820s demanded “Universal Suffrage” on the understanding that this meant that if one person suffered then so should everyone else. 2
In any event, and however it may have been misused from time to time, I remain of the view that the term “rule of law” has real meaning and value.
While some writers have given the term “rule of law” a more limited meaning, I use the term in a broad sense to refer to where the system of law and law enforcement operates well to prevent and provide effective remedies for injustices, so that those living under it can expect the law will be generally observed and complied with, including by governments and those having authority under the law.
In that sense of the term, the rule of law is not only a useful expression to aid discussion and analysis, it is something to be valued, sought and upheld.
Many here tonight will be familiar with Winston Churchill’s well-known remark about the reasons for fighting against the Nazi regime in the second world war:
There are thoughtless, dilettante or purblind worldlings who sometimes ask us: “What is it that Britain and France are fighting for?” To this I make the answer: “If we left off fighting, you would soon find out.” 3
Similarly, if we were to leave off fighting to maintain the rule of law, we would soon see the spread of evils such as soaring crime, corruption, ineffectual law enforcement and justice unattainable from the courts.
When can it be said the rule of law prevails?
In considering what features make a good system of law – a system where the rule of law can be said to prevail – I have found it helpful to do so not from the perspective of a legal theorist, but from the perspective of an ordinary person who is subject to the law, whether the law concerned is the law of the land, the rules of a sporting code or the rules of a schoolyard.
So, then, what are the features needed for a good system of law? I would venture to list five:
Firstly, you shouldn’t get into trouble if you didn’t do it. In other words, the rules must be applied correctly to the facts, which means of course there must be a reliable and efficient way of achieving that, whether by judicial means or otherwise.
Secondly, you shouldn’t get into trouble if you didn’t know (nor should have known) that you shouldn’t do it. In other words, the rules need to be made known in intelligible form to those to whom they apply.
Thirdly, people shouldn’t suffer through others breaking the rules. In other words, there must be effective prevention and enforcement of the rules against all would-be and actual transgressors.
Fourthly, there should be laws against various injustices. In other words, while the law cannot and should not attempt to mandate all good conduct or prohibit all bad conduct, the law will be defective it does not require people to do various things that are essential to be done for the common good, or if it doesn’t prohibit various conduct that is destructive of the common good.
Finally, you should only be ordered around by those who are entitled to order you around. In other words, those who make and enforce the rules must be entitled to make and enforce those rules, and others should not be able to impose rules on people when they are not entitled to.
Needless to say, the current Victorian Government’s reform initiatives have been directed at supporting the rule of law in each of these respects, from jury directions and civil procedure reforms to more police, fines reform and strengthened asset confiscation measures, to far reaching parole reforms, to laws making serious bullying a criminal offence and to laws allowing the outlawing of criminal bikie and similar gangs.
As you would expect, the precepts for good legal systems laid down by legal scholars cover many of the features I have mentioned that are needed for the rule of law.
Both Professor Lon Fuller and Professor John Finnis have drawn up lists of such precepts. Professor Finnis 4 in 1980 listed eight precepts that exemplify the rule of law:
i) Its rules are prospective, not retroactive.
ii) They are not in any other way impossible to comply with.
iii) Its rules are promulgated,
iv) clear, and
v) coherent with one another.
vi) Its rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules.
vii) The making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable and relatively general.
viii) Those people who have authority to make, administer, and apply the rules in an official capacity
a) are accountable for their compliance with rules applicable to their performance; and
b) do actually administer the law consistently and in accordance with its tenor..
Professor Finnis has also discussed how these characteristics require qualities relating to the calibre, independence and due process of the judiciary. 5
However, such precepts and requirements do not directly address some of the key features I believe an ordinary citizen would want to see under the rule of law, such as content that prohibits serious injustices, a system of enforcement that goes beyond adjudication, and ensuring clear and legitimate sources of authority.
What is needed to achieve and maintain the rule of law?
I have not so far said anything about how the rule of law is actually to be achieved or maintained. We may know the rule of law when we see it, but how do we ensure we have it and keep it?
There are in fact at least two theories about the rule of law that make assertions about aspects of the structure of a political and legal system that are said to help achieve and maintain the rule of law.
These theories are, on the one hand, Professor A V Dicey’s theory about the rule of law under the Westminster system, and on the other hand the theory that the rule of law is best secured and maintained by a binding Bill of Rights.
Professor Dicey’s well-known definition of the rule of law, a definition that dominated English constitutional theory in the late 19th and early 20th centuries, was at its heart about the principles that he considered had safeguarded and were continuing to safeguard those living under the Westminster system of government from the risks of tyranny and abuse.
Professor Dicey attributed the rule of law under the Westminster system to three principles:
• No person should be punishable except for a distinct breach of the law “established in the ordinary legal manner before the ordinary courts of the land”.
• Every person is accountable to the ordinary law of the land, no matter what their rank.
• The rights of citizens (and particularly freedoms such as the right to personal liberty or the right of public meeting) are best protected by the common law rather than by a constitutional bill of rights. 6
Thus, under Dicey’s third principle while the law should and does impose constraints on government, ultimately the Parliament is entitled to have its way.
In contrast, Lord Thomas Bingham, for example, has argued in his book The Rule of Law that the tragedies of Nazi Germany and totalitarian Soviet communism demonstrate that the rule of law requires that states should entrench certain rights and freedoms in their domestic statutes. 7
Content matters, not just form
Of course, any discussion about how common law or Bills of Rights may promote or detract from the rule of law needs also to have regard to content as well as form. Few opponents of modern Bills of Rights would decry the intrinsic merits of many of the propositions set out in those Bills. On the other hand, not many contemporary advocates of binding Bills of Rights would want them to contain a provision such as the second amendment to the US constitution – the guarantee of the right to bear arms.
Professor Mary Ann Glendon, a recent return visitor to Melbourne, has written extensively about the content of the Universal Declaration of Human Rights . She writes about how it was one of the best of times when the idea came into human history that there are some common standards of decency and goodness that can and should be accepted by people of all nations and cultures. 9
However, Professor Glendon also argues that with the passage of time, the practical grounding of the men and women who drafted the Universal Declaration, and the fact it was drafted in the context of the atrocities of then recent years, have been forgotten or ignored by some rights advocates, as has the Declaration’s “commitment to personal freedom and its sense of one human family for which we all bear a common responsibility”. 10
Instead, Professor Glendon argues, such advocates have tended:
• to selectively promote favoured parts of the Declaration and demote others such as guarantees of religious freedom, the protection of the family and parents’ rights concerning education,
• to “think of rights without individual or social responsibilities”,
• to” ignore the relation of rights to constitutional government and the rule of law”; and
• to lose sight of the fact that “universality”, to the Declaration’s framers, did not mean uniformity. 11
Constitutional structures must protect against diverse risks
The pros and cons of entrenched Bills of Rights are simply one example of the broader point I referred to earlier, namely that in seeking to secure and preserve the rule of law, we need to think about means as well as ends.
In considering how best to secure the rule of law, we have to remember that legal and constitutional systems don’t usually arise from a dialogue of intelligent and civilized equals sitting at a round table to design a system and laws for mutual and equal benefit.
History shows that laws and legal systems have evolved as much as a means of rulers imposing their wishes on subjects as a means for rulers to provide the rule of law for the benefit of the ruled.
History also shows that changes of rulers have occurred from time to time in circumstances where either the legitimacy of a ruler is hotly contested or a regime change has been so fundamental that legitimacy has had to be completely re-based.
Furthermore, decisions about the content of laws are often struggles about benefits and advantages for some persons over others, rather than about laws shaped for mutual and equal benefit.
For these reasons, the structure of the political and legal system is crucial to whether the rule of law prevails, and a robust and enduring political and legal system must be able to withstand the many risks that arise from struggles for personal or sectional advantage.
These risks include oppressive rule-makers – regardless of whether those rule-makers are dictators, monarchs or elected majorities – judges who distort or misapply the law, oppressive or unlawful administrations, inadequate law enforcement, biasing of constitutions and corruption of all sorts. That is not to mention the risk of complete overthrow of regimes by subversion, insurrection or invasion.
In light of these struggles and risks, the questions of how laws should be specified and applied, and who should be entitled to make what decisions about them, have been vexed ones for centuries.
According to Professor Waldron, even Aristotle can be taken as holding, on the one hand, that as many matters as possible should be settled in advance by general rules and, on the other hand, that the rule of law consists of a legal specification of the individual or group that must take responsibility for a decision. 12
Who decides what – the roles of courts and legislatures
One topical aspect of the issue of who decides what is what role, if any, the courts should have in applying laws to governments and legislatures.
Thomas Hobbes argued forcefully in 1651 that it would be:
…repugnant to the nature of a Commonwealth …[t]hat he that hath the Soveraign Power is subject to the Civill Lawes. . . . Which errour,because it setteth the Lawes above the Soveraign, setteth also a Judge above him, and a Power to punish him; which is to make a new Soveraign; and again for the same reason a third to punish the second; and so continually without end, to the Confusion, and Dissolution of the Commonwealth. 13
Few these days would support Hobbes in this if he is taken to be saying that executive government should be beyond the rule of law. However, the role of courts and laws in relation to elected Parliaments remains a vexed one.
Of course, in itself, the regulation of law-makers by laws is unexceptional. Indeed, it is almost axiomatic that there must be laws or rules about how law makers can make laws.
Rather, the debate is about whether and what kind of constraints there should be regarding what laws the law makers can make, including about the extent to which law makers can change the laws about their own composition or procedures.
It seems to me that in principle there can be a variety of possible ways of handling this issue, each of which is compatible with the rule of law, and thus there is no universal answer.
However, in seeking to decide on the appropriate roles for courts and legislatures within any particular constitutional system, it is crucial to recognise that the way a society decides the issue of the role of the courts sets unavoidable constraints on other aspects of the constitutional system.
It is rather like designing or modifying a car. Once you decide, for example, whether a car is to have a front or rear engine, this limits your choices in relation to suspensions, transmissions, luggage compartments and much more besides.
Constitutions with components that are not compatibly engineered may achieve some of their objectives, but are also likely to open risks to good government and the rule of law of the sort that I referred to earlier.
This point applies even more forcefully when modifications are contemplated to existing constitutions. Constitutional arrangements that may work well in one regime may fail disastrously if inserted into an incompatible regime. For us, this means we must evaluate any proposal for constitutional or other structural change in terms of how it would work if inserted into our current Australian customisation of the Westminster system
On the other hand, of course, we must also remember that a car design or a constitutional design that has worked well for years may develop difficulties due to wear and tear, pressures of usage or changes in external conditions. In such cases, modifying its design may in fact become imperative if the car or the constitution is to continue to run well or at all.
Deciding about rights judicially requires shared values
One aspect of the roles of the courts that illustrates some of these considerations was highlighted cogently by then Chief Justice, Hon. Murray Gleeson, in his address to your Association in 2004 entitled “Rights and Values”. 14 His Honour pointed out that:
• The two notable features of commonly accepted civil and political rights are that rights are rarely absolute and some rights may conflict with other rights.
• When rights conflict, a decision as to which is to prevail, and to what extent, can only be justified rationally by reference to some value external to the “balancing” process.
His Honour referred to Professor John Anderson, who used to amuse himself with the paradox that two people can only have a sensible argument if they are already largely in agreement. The example he gave was that a Catholic could have an argument about transubstantiation with an Anglican but not with an atheist.
Just as argument depends on shared values, a court’s judgement can only explain a judicial choice between competing interests if it justifies the choice by reference to values that are shared by the reader of the judgment.
In other words, if we are to expect judges to weigh competing rights, or to apply broadly expressed rights, we must either give them the criteria, the values, as His Honour put it, by which to undertake such weighing, or else we must leave judges at large to supply such values as they see fit. We cannot then complain if the values they supply tend to be derived from a hotchpotch of sources, including their own personal beliefs.
When society has near universally accepted values, leaving the judiciary to supply the values creates far less of a problem, because judges can reasonably be expected to apply common values. However, when values themselves are hotly contested subjects, as has become increasingly the case in modern times, this expectation can no longer hold, and this can create problems for our legal and governmental structures of a sort that did not exist in earlier times.
Other interpretation risks arising from changing values
This problem is not just an issue for rights laws; it can apply to constitutional law and indeed to common law. If there is a common understanding of what the man on the Clapham omnibus would consider reasonable, the reasonable man test can be left to determine the extent of the duty of care in the law of negligence. However, when that common understanding disappears (if it ever existed), views about reasonableness can differ widely, and have at times resulted ever more rigorous standards of foresight being imposed from the bench, which have in turn led to statutory interventions.
Where entrenched constitutions exist, laws, governments and the judiciary can be left even more exposed to changing views of the world and to changing approaches to constitutional interpretation, as well as to omissions, ambiguities and other flaws that may emerge in the constitutional text. This is because there are likely to be very limited means for the community through democratic processes to effectively and efficiently supply the values that the community might want to have underpinning what is entrenched, or for the community to change interpretations with which the community may disagree.
For example, judicial approaches to Australian constitutional interpretation have been through many changes since Federation, and each of those changes has had far reaching effects on the roles and responsibilities of governments and Parliaments and the rights, freedoms and obligations of citizens.
Yet, while it may be well out of line with current constitutional interpretations to say so, I expect that the majority of those who took part in the constitutional conventions intended in the constitution they drafted no greater limitation of Westminster-style Parliamentary sovereignty for either Commonwealth or State Parliaments than was necessary to resolve the inter-se relationships of the Commonwealth and the States or to give effect to specifically determined bases of the federation, such as uniform customs duties and free interstate trade and commerce, or to introduce a limited number of specific provisions or limitations such as the creation of the High Court, acquiring property only on just terms or prohibiting the establishment of a religion.
Value decisions about laws are for Parliament and for public debate
I firmly believe that, under the Westminster system at least, the rule of law is best promoted if judges are clearly regarded, and act, as umpires and not players. This is rightly expected of judges in their conduct both on and off the bench, and I respectfully venture to say that both in Victoria and Australia we have generally been extremely well served in this regard.
It follows that the rule of law under a Westminster system is best advanced when Parliament accepts that its role is to frame laws that do not unreasonably require judges to supply their own values in deciding cases before them. When Parliament avoids imposing unreasonable requirements of this sort, long established principles of judicial interpretation should and generally do operate well to determine how judges go about resolving issues of ambiguity and uncertainty.
Thus, if judges are neither being forced nor striving to go beyond this role, it falls to Parliament and public debate to determine the laws and to shape the values that underpin both the law and the broader functioning of society.
Constructive public debate helps underpin the rule of law
In a pluralist society such as ours, there are many different views about what constitutes good laws and what values should underpin them. In an open democracy, it is important that those who have views should be willing and able to put them openly, freely and constructively, and that all such views should be given a fair and respectful hearing based on the strengths of the arguments that support them.
Indeed, the tone in which such public debate is conducted, and the social mores and attitudes that set that tone, are themselves vital parts of the underpinnings of the rule of law.
I therefore trust that an important part of the work of your Association will continue to be participating in in the public square of policy debate, drawing both on your legal expertise and your values.
Thank you once again for the opportunity to address you this evening, and I hope that my remarks have made some contribution to consideration and dialogue on a subject that is fundamental to the free and open society in which we are fortunate to live.
1. Jeremy Waldron, “Is the Rule of Law an essentially contested concept (in Florida)?” Law and Philosophy 21: 137-164 (2002), 139
2. Nicholas Vincent, Magna Carta: A Very Short Introduction (Oxford University Press, Oxford, 2012),p.98
3. Winston Churchill, The Situation in Europe – Dwelling in the Cage with the Tiger, Broadcast from London, 31st March, 1940
4. Natural Law and Natural Rights (Clarendon Press, Oxford) p.270
5. Ibid, p. 271
6. A.V. Dicey, An Introduction to the Study of the Law of the Constitution (1885, 9th edn Macmillan, 1945), pp.193 – 195, discussed in Thomas Bingham The Rule of Law (Penguin Books Limited, London, 2011) pp 3-5 and see also H.W. Ardnt “ The Origins of Dicey’s Concept of the ‘Rule of Law’” 31 ALJ 6 (1957).
7. Bingham, ibid. pp.66-7
8. Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, NY, 2001); Mary Anne Glendon “The Rule of Law in the Universal Declaration of Human Rights”, 2 NW. J. Int’l Hum. Rts. 1 (2004) at http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1008&context=njihr (accessed 9 August 2013). Mary Ann Glendon “Human Rights for All’ Caritas Helder Camara Lecture Series 2002 , at http://www.catholiceducation.org/articles/social_justice/sj0006.html (accessed 9 August 2013)
9. “Human Rights for All’ Lecture, ibid.
10. Ibid, section 4. See also “The Rule of Law in the Universal Declaration of Human Rights”, op. cit.
11. “Human Rights for All” Lecture, ibid, section 3.
12. Waldron, op cit. 141.
13. Thomas Hobbes, Leviathan, (1651) Book II, Chapter 13, http://pd.sparknotes.com/philosophy/leviathan/section31.html (accessed 18 August 2013).
14. Available at http://www.hcourt.gov.au/publications/speeches/former/speeches-by-the-hon-murray-gleeson?print=1&tmpl=component