A return to the Rule of Law – Part 1

The Rule of Law

What is it? A conflict of suppositions

Many politicians use this phrase, attempting to say, “No matter the judgment, we won.” Or as Professor Jeremy Waldron (commenting on Bush v Gore) said:

‘… the utterance of those magic words meant little more than “Hooray for our side”’. (Bingham, p5)

Judges use it to describe concepts of law, yet it is interpreted differently by everyone. No two persons have the same view of the Rule of Law and what it means, and neither will be wrong, nor necessarily right.

The Rule of Law is a paradox, a contradiction both in theory and practice. A close examination will reveal the truth of that statement.

• · It is not legally enforceable, but it is enforced in courts.
• · It suggests a limitation to State power from abuse yet has no force.
• · Everyone “understands” what it means, yet no one does.
• · Its power come from emotive appeal, but not law.
• · It suggests an absence of tyranny but offers no protection from tyranny.
• · It is a method of social control without legal rules.
• · It is ‘fixed’ yet constantly in flux.
• · It is political, yet apolitical.
• · It conflicts with the notion of Parliamentary Sovereignty (the idea that Parliament can make or unmake any law).
• · It appears in written instruments of law but always without a clear definition.

The above is a non-exhaustive list. I will attempt to give a short explanation of what it is, and at the same time attempt to show what it isn’t. In trying to explain misconceptions people have of the rule of law, and comparing of some of its strengths and weaknesses, hopefully, some of the paradoxes above will be explained also.

The idea of ‘rule of law’ is very old, and has been traced way back to the time of Aristotle (384 – 322 BC):

“It is better for the law to rule than one of the citizens … so that even the guardians of the law are obeying the law.”

Stripped bare: A first look

However, law students first encounter the phrase ‘rule of law’ in connection with Albert Venn (AV) Dicey (1835 – 1922), former professor of law at Oxford University who popularised the phrase in his book: “Introduction to the Study of the Law of the Constitution”. Dicey was, for many years, considered the foremost ‘authority’ (I use that word with due caution) on the rule of law. He suggested that there were three tenets, or principles, present in the rule of law:

1) The State cannot exercise arbitrary power.

This simple statement is more revealing than it appears. What Dicey envisioned was that the State’s power, and its use of that power, must be controlled by law and the State cannot be allowed random powers or arbitrary use of those powers. Dicey also thought that rulers of State do not have any wide discretionary powers to create law but must do so within an established framework for creating laws, or by prior established law. In other words, the State cannot arrogate onto itself powers that it does not have, or think it has.

There is another principle associated with the use of law to control the State’s power. This asserts that a person cannot be punished by the State for something which is not against the law, or which was not against the law at the time he did it. In plain words, if an act is not explicitly forbidden, it is permitted and cannot be made a crime retroactively. Also, a person may only be punished for a breach of law proved before an ordinary court.

2) There must be equality before the law.

This may perhaps be a self-evident principle but one which is clear: Everyone, including the State and its agents, are bound by the same laws.

“Be ye ever so high, still the Law is above Thee.” (Thomas Fuller)

3) Origin of rights

In Dicey’s view, rights of the Englishman were derived from judgments coming from the courts, whereas under ‘Continental’ constitutions, he saw rights as being derived from the principles laid out in those constitutions.

Under the British Constitution therefore, rights were gradually obtained through judgments in which distinct principles were identified as abuse of power against the common man. Limitation of those excessive powers resulted in identifiable rights.

Case example

Entick v Carrington [1765] EWHC J98 (KB) beautifully illustrates several of the principles explained in the preceding paragraphs.

On 11 November 1762, Lord Halifax, a newly appointed Secretary of State, sent his Chief Messenger with a warrant, one Nathan Carrington (the defendant), to the home of John Entick (back then called the plaintiff). There:

“with force and arms broke and entered the dwelling-house… and continued there four hours without his consent and against his will, and all that time disturbed him in the peaceable possession thereof, and broke open the doors to the rooms, the locks, iron bars, etc. thereto affixed, and broke open the boxes, chests, drawers, etc. of the plaintiff in his house, and broke the locks thereto affixed, and searched and examined all the rooms, etc., in his dwelling-house, and all the boxes, etc., so broke open, and read over, pried into and examined all the private papers, books, etc. of the plaintiff there found, whereby the secret affairs, etc., of the plaintiff became wrongfully discovered and made public and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc. of the plaintiff there found, and other 100 charts etc etc took and carried away, to the damage of the plaintiff 2000l (£2000)”

Arising out of the judgment were the following principles:

• · A State official cannot appropriate for himself power he does not have.
• · A State official’s authority must be clearly established in law.
• · The State is permitted to do only what is expressly (explicitly stated) permitted in law, but the individual may do anything except that which is expressly forbidden in law.
• · “Every invasion of private property, be it ever so minute, is a trespass”. This is also reiteration of the concept, “A man’s home is his castle…”. No one can interfere unlawfully with a person or his property.
• · The burden is on the trespasser to show cause.

Perhaps the best overall interpretation would be saying that a person has the right to respect for his private life, home etc.

Dicey’s view of the rule of law was understandably narrower than today’s perception, which, thanks to several academics such as Raz, Unger, Dworkin, Fuller and Bingham is more comprehensive than Dicey’s.

Next, a look at alternative views on the rule of law, and how Dicey’s observations were expanded upon.