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The Rule Of Law Notes

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4. THE RULE OF LAW Formulations
 Broadest - people should be ruled by law; law should be capable of ruling people (guiding their behaviour by being clear & prospective)
 Narrower - government should be subject to law (harder to achieve) o BUT if government is by definition government authorised by law - then this becomes tautology?
 Thick v thin conceptions - formal requirements as to institutions (prospectivity, independence of judiciary, etc) v substantive requirements as to equality in substance of laws etc
 'thin' conception (law governs all in a way that is predictable & allows citizens to conduct their affairs)
 complemented by 'thicker' conception requiring certain procedural rights - no good having proper norms if not properly administered / adjudicated Stems from features of legal order
 Comprehensiveness; purported supremacy
 Definition, specificity, clarity - and therefore predictability Goldsworthy — Legal principle or political ideal?
 Legal principle - judicially enforceable - invoked in Canada as basis for judicial review of legislation o Ironically, using rule of law as (bare) basis for invalidating legislation would breach requirement for certainty & predictability in rule of law
 Political aspiration - constitutional insofar as conventions require compliance o Does not bind legislatures any more than other political principles (like equality or other conventions) o Distinct from question whether rule of law compatible with political sovereignty
 And even if it is, whether democracy is more important than the rule of law
 Rule of law can exist in systems without democracy - would the case for subjugation of legislative power to bills of rights be stronger?
 Even if they are, does not follow that democracy 'trumps' - just that countervailing factor History
 Plato — philosopher king & benevolent monarchy, but still hoped that law would have authority in itself o "where the law is subject to some other authority and has none of its won, the collapse of the state is not far off" <> "if law is the master of the government and the government its slave, then the situation is full of promise"
 Aristotle — first pure advocate of rule of law
 Deuteronomy imposed some limits on Jewish kings — although never implemented or enforced

Raz — Thin conception
 Raz — Fallacies re rule of law o It does not have overriding importance
 For good legal system has to be complemented by democracy, justice, equality, human rights, etc o Rule of law does not equate to rule of good law — otherwise becomes a truism
 System can comply with the rule of law and make many bad laws
 Waldron — Rule-book conception — texts & precedents of law applied with certainty & without fear or favour
 One of a cluster of ideals constituting political morality — together with human rights, democracy, and free markets o Rule of law is fundamental
 Democracy cannot exist except with procedures of election secured by law
 Markets require law governing property & contract
 UDHR preamble states essential that must be protected by rule of law o Rule of law is older — since Aristotle, well before human rights &
democracy fully developed
 Rule of law required but not sufficient for good government o Cf Hayek - uses rule of law to call for good laws - in particular to prohibit government interference with economy - rule of law should not be mobilised to particular political agenda
 Definition of 'good' necessarily differs from person to person o Pursuit of any particular social goal cannot be inconsistent with rule of law
 FA Hayek's definition - government bound by rules fixed & announced beforehand, which are sufficiently certain to allow individuals to plan their affairs
 Says nothing about how law ought to be made - democratic structures, etc o Historical origins - rule of law came about well before democracy o Brings in judicial review through ultra vires philosophy, requires independence of the courts o Really just an exercise in taxonomy - but gives the principle some meaning
 Extremely unjust laws that are prospective, promulgated, clear and stable are not objectionable on rule of law grounds
 Rule of law is necessary but not sufficient for justice
 Thin justification does not require any particular substantive limitation on legislative power - justifies only very limited, procedural review of legislation o Impractical - requirements for publicity of laws, stability, clarity, cannot be absolute (but does this negate possibility of review?)
 Eg Ashworth / France - defence of ignorance of law if reasonable

o Prospectivity - justified in certain circs & should leave to parliament to decide
 Obviously shouldn't have judicial mandate to invalidate on that ground alone -
 eg war crimes legislation is retrospective but justified
 British Parliament 1965 reversing right to compensation retrospectively
 Cf. Gaudron J in Tampa special leave application
 Changing common law in criminal cases - has retrospective effect (eg Issa & Elias) - 'fairy-tale' of declaratory theory of common law
 From political perspective - desirable in the pursuit of the aspiration that have constitutional requirement to put retrospective legislation to plebiscite (if parliament derives sovereignty from the people) "Functional" conception — variant of thin view
 Rule of law <> Rule of man
 IE rule of law strongest when men have least discretion
 Still says nothing about virtue of laws — just encourages certainty at expense of flexibility As a negative value
 Rule of law essentially a negative value - minimises dangers inherent in the existence of law o Conformity does not cause good but avoids evil o No necessary connection between law & morality
 TRS Allan — Response to Raz's 'negative value' conception o Reduces to requirement that society be governed by 'law' - bare conception that adds nothing to requirement for 'law' of a kind o BUT that is true, and it has follow-on consequences as described above; still has substance; says more than requirement for source of authorisation Knife analogy -
 sharp knife is a good knife, even if can be used for bad purposes - laws conforming with rule of law are good laws in a sense, even if bad in content o Guarantees law/knife's ability to function - even if functions in a bad way - supports instrumental value, not moral value o Pre-requisite for law/knife's ability to function in a morally good way is to function at all
 Finnis — Criticism of knife analogy o Finnis rejects that rule of law simply enables efficiency - eg requirement for stability & subjection of government to rules decreases efficiency to guarantee good government o BUT knife analogy isn't efficiency in the sense of executing the sovereign's will - is efficiency in sense of enhancing rules' ability to govern behaviour of individuals & government

Nor is it Barber's efficiency in the sense of achieving virtuous outcomes

Criticisms of thin conception
 would allow 'chronic lawless violence' inflicted on some citizens against others o = formal equality before the law o concerns extent of appropriate regulation of activity - also raises question about applicability of rule of law to private actors o Does rule of law require some minimum standard of regulation?
Probably not - that is supplied by other ideals - eg equality, democracy (indirectly) Thick conception
 Finnis — Natural law conception - BUT seems to put the cart before the horse
- law must be subject to certain (rule-of-law) restraints to be legitimate, that legitimacy has a biproduct of fairness // cf law must be fair to be legitimate, that fairness requires certain restraints o Authority of law depends on ability to secure justice - eg criminal law's reliance on proportionality, procedural fairness, etc
 TRS Allan — Rule of law = maintenance of conditions consistent with liberty of individual & equality of liberty for all o BUT this is charged with political ideals, extends beyond narrow rule of law conception o Is the kind of conception that is mobilised against the Regulatory &
Welfare State
 Dicey & later Hayek conceive rule of law as relationship between law &
liberty Waldron — rule of law requiring good procedures v good outcomes
 Waldron — Proceduralist conception — procedures of law will be adhered to; certainty of outcome less important than certainty of procedure o Could be framed as "thin" conception — procedures are in the rule book as well o Alternatively, "thicker" rule of law conception as presumes good procedures, involving proper & considered deliberative procedures, and therefore considered & tempered outcomes o Purpose of constructing good procedures is to ensure good outcomes o <> even thin conception — must also have some core minimum of good procedural requirements unless consistent arbitrariness is to satisfy rule of law
 Dworkin — the rights conception (outcomes) — moral & political rights of citizens, as against each other & the State, be recognised in positive law &
enforceable through institutions o If only legal rights — would be thin "Rule-book" conception o Expressly thick — equates rule of law with rule of good law (ie law that accurately represents morality)

"requires, as part of the ideal of law, that the rules in the rulebook capture and enforce moral rights" o Encourages each individual to suppose that his relations with other citizens & government are matters of (moral) justice o Overtly focuses on legal outcomes rather than procedures
 Although rights are procedural as well as substantive
 Also an objectivist about procedures — eg in Law's Empire, talk about "inclusiveness" and "pure" integrity
 So question about good outcome by bad methods <> bad outcome by good methods doesn't arise — because best methods will produce best outcomes Waldron says Dworkin's model best viewed as a procedural model —
o "Right answer theory" — diluted role of objective correct answers
 denies that some correct answer locked up in "transcendent strongbox" — but explains purpose of legal argumentation o Rather, blocks contention that legal argumentation can be exhausted or becomes futile o Therefore, rule of law refers to system committed to particular method of argumentation = procedure Dworkin's model & civil disobedience o "A citizen's allegiance is to the law, not to any particular person's view of what the law is" — justifies civil disobedience of courts o BUT even if there is an absolute (unknowable) truth, surely citizen should defer to court's determination of what that truth is Objectivity & disagreement o Objectivity compatible with disagreement o Objectivity necessary for disagreement — if morals were purely subjective, then nothing to disagree about — could only oppose a particular view but could not say it was wrong Submission to process and finality <> submission only to correct outcome —
does a judge who continues to dissent defy rule of law?
o Nozick's historical entitlement theory — cannot assess justice (of distribution of wealth) at any point in time, because is part of an ongoing continuum of process (market) o <> Hart's principle of institutional settlement, res judicata o But consistent with Dworkin's refusal to agree that a citizen is obliged to submit to final but incorrect determination of rights
 Courts overrule themselves — and dissenting judges continue to dissent, even if law is established by majority — eg Heydon re implied freedom; Bell & Gummow re Al-Kateb o IE dissenting judge complying with the rule of law even though not doing so on rule-book conception
 BUT rule of law acknowledges that law must change, gives courts institutional power to do so — so even on narrow conception, dissenting judge is complying with rule of law Analogy with science — absolute truths exist independently of testing processes & universal acceptance

o NB — any incorrect outcome must reflect an incorrect testing procedure; any revised outcome is reached by revised procedure
 <> in law & epistemology generally, same procedures might reach different outcomes
 but also true that better procedures developed to attain better outcomes
 Not exclusively — eg CMP debate not only about instrumental concerns — Lord Kerr <> Lord Hope in Al Rawi Quest for better procedures also suggest absolute truths at least as to procedure — must also be true as to outcomes o Idea of absolute truth provides the basis for challenging & improving procedures — in science as in law

Principles of rule of law & extension to 'rule of good law'
 Avoidance of arbitrary power - general application of rules o Says that it follows that Rule of law requires a certain level of respect for civil law - public interest insufficient to justify incursions on personal liberty o BUT this is patently a political ideal - rule of law broader than this
 Impartial application of the law o Says leads to equality before the law (formal equality) AND substantive equality of treatment
 Need for predictability & prospectivity o Common law implications - against retrospectivity, for mens rea requirement, against inversed onus of proof, principle of legality generally o Individuals will act on basis that fundamental rights & freedoms will not be swept away - therefore follows that rule of law requires some minimum respect for human rights
 Rule of law more than simply formal equality o Formal equality - all governed by same known/knowable rules & free to act as we wish, constrained only by officials authorised by law o Requires that laws not distinguish between citizens (a) without a criterion based in a proportionate public interest and (b) in its strict enforcement
 Recourse to 'public interest' criterion loads it up politically - advantage of more bare conception is objective enforceability
 Eg - mandatory sentencing in Magaming; alcohol regimes in indigenous communities in Maloney; indefinite detention of immigrants in M70
 Collapses into reference to 'plausible' (even if contestable)' view of public interest o Bill of attainder violates rule of law because of arbitrary interference with liberty
 Better characterised as interfering because of lack of predictability / generality / independence of judiciary: Kable

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