The rule of law is not a political tool

The New Zealand Law Society is conducting a survey on the rule of law. See Rule of law survey – add to the discussion, fifth item. In question 5 of the survey, one is asked to describe, with a limit of 2000 characters, what one considers to be the elements of the rule of law. Then, in question 6, which you cannot go to unless and until you have answered question 5, the Society provides its version of the rule of law. Fortunately, I made a copy of the Society’s version, because I find I cannot go back into the survey as I have already completed it. This is how I answered question 5.

The rule of law is a moral imperative subjecting all to laws meeting procedural standards with content capable of achieving freedom and political equality. Political equality, which requires that no one has more power and jurisdiction than another, is denied when one or more assumes power and jurisdiction over others (the rule of men). For practical reasons the operation and execution of laws must be delegated to chosen persons; the rule of law requires those delegates to be subject to the constraints of the law, so that no one is above the law.

Procedural standards require laws that are stable, publicly accessible, clear, not retrospective, and applied by independent judges in accordance with fair procedures. They must be prospective, capable of being obeyed, promulgated, clear, coherent (not contradictory), stable (not changed arbitrarily), general (so that particular decisions are framed by general rules), and in fact directive of official action.

Content must be the minimum capable of securing freedom and political equality. That means there must be laws aimed at securing freedom from physical violence, injury and death; law must outlaw coercion except in accordance with legal authority (coercion in accordance with legal authority is required to protect the law-abiding from those who are not); law must outlaw arbitrary detention; law must ensure recourse is available to an independent tribunal charged with the application of the laws.

The procedural and content requirements are necessary and also sufficient. They are necessary as the essential framework for social existence and civil society, by aiming to eliminate physical force as a means of obtaining ends. They are sufficient because they provide and protect the civil framework within which choices can be made to establish and protect other community values through political institutions and processes, catering for effective community participation in the making of further laws enjoying community approval.

Before turning to NZLS’s description, I will explain why I formulate the rule of law in this way. Albert Venn Dicey, Vinerian Professor of English Law at Oxford University coined the phrase the rule of law in his Introduction to the Study of the Law of the Constitution in 1885. Dicey’s summary of his conception of the rule of law can be found on pages 120-121. Summarising the summary: regular law, as opposed to arbitrary power, is supreme; all are equal before the ordinary law of the land; the rule of law is a formula for expressing the fact that the rules comprising the law of the constitution are a consequence of the rights of individuals, not the source of those rights.

Dicey’s formulation goes only so far, as it neither says anything about the form those laws should take nor about their content. The contest which has developed is between conceptions of the “thin” rule and the “thick” rule. Professor Joseph Raz, who died in 2022, is perhaps the leading proponent of the “thin” rule, but there are many supporters. Thus, Richard Ekins, editor and contributor to Modern Challenges to the Rule of Law (LexisNexis, 2011, at p 166) identifies some of them and describes features of the thin rule:

The aspects of the rule of law picked out by Finnis, Fuller, Raz, Summers, and others each capture part of that character of the system, and the pattern of choices and actions that is this system in action. The propositions of law that frame and direct all reasonable persons, and to which the unreasonable are compelled to conform, should have certain virtues. Namely, laws should be (i) prospective, (ii) capable of being obeyed, (iii) promulgated, (iv) clear, (v) coherent (not contradictory), (vi) stable (not changed arbitrarily), (vii) general (so that particular decisions are framed by general rules), and (viii) in fact directive of official action

Former New Zealand Court of Appeal judge, Hon Sir David Baragwanath KC endorses this formulation, in the Foreword to Modern Challenges to the Rule of Law.

In The Rule of Law, the late Lord Bingham notes that Raz’s “thin” rule of law would permit thoroughly bad laws (“The law may … institute slavery without violating the rule of law”, Raz had written). Bingham rejected this, stating “While, therefore, one can recognize the logical force of Professor Raz’s contention, I would roundly reject it in favour of a ‘thick’ definition, embracing the protection of human rights within its scope.” (Bingham, Tom. The Rule of Law (p. 67). Penguin Books Ltd. Kindle Edition.)

The issue is whether law which satisfies the “thin” formulation must also contain content of a certain nature if it is to conform with the rule of law. Irrespective of the answer to that question, it is undoubted that if law is to conform with the rule of law, the “thin” characteristics must be present.

The view I have come to, after much reading and consideration over the last few years, is that there is indeed a need for the law to conform with certain content rules if the structure it creates is to be in conformity with the rule of law, but I consider it to be improper to encumber the rule of law with content requirements simply because they accord with the proponent’s own subjective morality. That does not mean that human rights, for example, are not to be embraced and supported. It just means that it is not the rule of law which requires them to be adhered to.

In considering what the content rules are, I go back to fundamentals. Although Dicey coined the phrase, the rule of law, the concept has been around for a very long time. Many writers on the rule of law see Aristotle as being the one who identified the existence of the rule of law. For example, Bingham (p 1) quotes a translation where Aristotle says, “It is better for the law to rule than one of the citizens… So even the guardians of the laws are obeying the laws.”

When one reads what Aristotle wrote in context, a clue to the necessary content of the rule of law is found.

Now, absolute monarchy, or the arbitrary rule of a sovereign over an the citizens, in a city which consists of equals, is thought by some to be quite contrary to nature; it is argued that those who are by nature equals must have the same natural right and worth, and that for unequals to have an equal share, or for equals to have an uneven share, in the offices of state, is as bad as for different bodily constitutions to have the same food and clothing. Wherefore it is thought to be just that among equals every one be ruled as well as rule, and therefore that an should have their turn. We thus arrive at law; for an order of succession implies law. And the rule of the law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law. For magistrates there must be—this is admitted; but then men say that to give authority to any one man when all are equal is unjust. Nay, there may indeed be cases which the law seems unable to determine, but in such cases can a man? Nay, it will be replied, the law trains officers for this express purpose, and appoints them to determine matters which are left undecided by it, to the best of their judgment.

Aristotle. Aristotle: The Complete Works (p. 2499). Feedbooks. Kindle Edition, translated by Benjamin Jowett.

When Aristotle wrote “And the rule of the law, it is argued, is preferable to that of any individual,” he did so in the context of the argument that the citizens of the city (Athens) consisted of equals, those who are by nature equals with the same natural right and worth, making it just that every one be ruled as well as rule, with everyone taking their turn. If everyone is to take their turn, there must be an order of succession, which implies law.

Thus, in Aristotle’s discussion, natural equality is the root of the argument for the rule of law. For practical reasons there must be guardians and ministers of the law. They do not themselves rule, but they are trained to enable them to determine matters in their ministering of the law.

Fast forward about 2000 years and we find John Locke identifying similar truths. The first paragraph of my answer to question 5 is derived from consideration of Aristotle and John Locke. The rule of law exists to serve, and its content is determined and judged by, the human conditions of freedom and political equality. I use the term “political” equality in the sense in which “equality” was used by Locke when he said, “A State also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another…” (Second Treatise of Government, 1680, Chapter 2, paragraph 4).

The specification of political equality is necessary to distinguish political equality from other situations where the existence of equality or inequality may be in issue. It is self-evident that in many aspects of the human condition, individuals are not equal. So, “political” here means the exercise of power and jurisdiction by one human being over another, and political equality requires that no one has more power and jurisdiction than another.

As Aristotle wrote, it is quite contrary to nature for some to rule over others. As he also explained, it is practically impossible to avoid some degree of some ruling over others. The rule of law exists to cater for this necessity by placing all — the rulers and the ruled — under the law.

It is also practically impossible for civil society to exist without laws which effectively outlaw the use of physical force. Those who heard Lord Jonathan Sumption’s address on the rule of law to the Legal Research Foundation late last year may recall that he had something to say on that subject.

Turning now to the New Zealand Law Society’s formulation. In question 6, the Society states:

 In its simplest expression, the rule of law is the principle that the law applies equally to everyone – both the government and its citizens. It is the basic idea that governors, officials and citizens alike should comply with the law, and that ministers, officials and public bodies must follow law when executing their functions. This is the ‘thin’ conception of the rule of law.

The rule of law includes an independent judiciary, and clear and enforceable laws.

A ’thick’ conception of the rule of law expands to include the protection of human rights, and effective access to justice and redress for individuals.

For more information, visit: https://www.lawsociety.org.nz/for-the-public/the-rule-of-law-in-aotearoa-new-zealand/

It certainly is part of the rule of law that the law applies equally to everyone, but this is only a part of the “thin” conception of the rule of law. The “thin” conception of the rule of law is that there are what I described in my answer to question 5 as procedural standards. Procedural is probably not quite the right word — “formal” would be better — but however you describe them, the “thin” components include those described by Richard Elkin.

Adherence to sound reasoning requires a crucial understanding: the rule of law is not elastic or adjustable to incorporate qualities desired by a proponent, even one as eminent as Lord Bingham; it exists and stands apart as a set of standards for judging the form and content of the laws within a legal system. The proper task for an analyst is to ascertain and explain what those standards are.

In its question 6 statement, the NZLS leaves out the formal essentials of the “thin” conception of the rule of law.

In its own publication, to which question 6 contains a link, NZLS lists some requirements identified by Lord Bingham including that the law must be accessible, and so far as possible, intelligible, clear and predictable.

The end of the questionnaire invites comment about what the rule of law should be in New Zealand today. Unfortunately, I did not take a copy of the question. However, it has the implicit and illegitimate premise that it is possible to choose what the rule of law should be.

NZLS’s approach to the rule of law can be seen to be consistent with the political agenda it has been pursuing which seeks to force the profession to become familiar with a set of beliefs which are the beliefs of only some of us, upon the premise that they may be regarded as part of our law. If the Society acknowledged the formal standards as an essential component of the rule of law, it would be necessary for it also to acknowledge that the beliefs it would have lawyers subscribe to cannot coexist with New Zealand’s commitment to the rule of law (Senior Courts Act 2016, s 3).

For a start, as Lord Bingham said, the law must be accessible, and so far as possible, intelligible, clear and predictable. Anyone who thinks that tikanga Māori satisfies those requirements should read the Statement of Tikanga appended to the Peter Ellis continuance decision.