Augusto Zimmermann, LLB, LLM, PhD (Mon.)
Senior Lecturer in Law
Editor, The Western Australian
Commissioner, Law Reform
Commission of Western Australia
Many legal scholars appear reluctant to
acknowledge or at least to address extra-legal aspects that, in a particular
social context, appear to determine the success or failure of the realisation
of the rule of law. The reason for this may be that these legal scholars would
then be compelled to adopt a less legal, more sociological approach in their
investigation of the phenomenon. This article provides a broad,
interdisciplinary account of legal and extra-legal circumstances that may lead to the successful (or unsuccessful) realisation
of the rule of law.
Although the meaning
of the concept known as the rule of law is always open to debate, there is a
general agreement that this is essentially concerned with protecting the
citizens from unpredictable and arbitrary interference with their vital
interests. Such interference may come from two basic sources: other
individuals, or government. Hence, a community is said to be under ‘the rule of
law’ if people are clearly protected from arbitrary violence, and if laws exist
that are established to maintain peace and avoid that which may be called a
Hobbesian state of ‘war of every man against every man’.
There is a broad
understanding that the rule of law means something more than the sanction by
law of every governmental action. In contrast to the ‘rule of men’, which
implies ‘arbitrary rule’, the rule of law is designed to minimise public and
private arbitrariness, so that the rights and freedoms of the individual may be
properly achieved as well as adequately preserved. As such, the rule of law
involves a delimitation of governmental functions, so that the power of the
state is exercised in accordance with clear, stable and general rules of law.
Such rules must be promulgated in advance and enforced by an independent and
impartial judiciary. By forcing the state to follow forms and procedures, law
operates to reduce the possibility of any government being able to excessively
coerce, obstruct or otherwise unreasonably interfere with the life, liberty and
property of the individual citizen.
Defining the Rule of Law
An underlying theme in Western legal history
is that the rule of law provides at least part of the solution to the problem
of ‘despotism’, here understood as the existence of abusive, external control over
the life, liberty and property of the citizen.
In his classic text, The Spirit of Laws, Montesquieu crystallises the
main aspects of despotism as follows: ‘In despotic government, one alone,
without law and without rule, draws everything along by his will and his
And later: ‘[T]he principle of despotic government [is] … fear.’
situation in which directives issued from the government are absolute, and
basic (constitutional) laws as such become worthless, the rule of law denies
the state any ‘right to destroy,
enslave, or designedly to impoverish the subjects’. Instead, the rule of law
implies that ‘government can act only through law and law checks the power of
As such, the rule of law is historically linked to ‘an ideal undoubtedly
connected with individual freedom understood as freedom from [unduly arbitrary]
interference on the part of everybody, including the authorities’.
According to the
late Emeritus Professor of Jurisprudence at Birmingham University, O Hood
Phillips, ‘historically, the phrase was used with reference to a belief in the
existence of law possessing higher authority — whether divine or natural — than
that of the law promulgated by human rulers which imposed limits on their
Indeed, the traditional function of the rule of law, as ‘an umbrella concept
for a number of legal and institutional instruments to protect citizens against
the power of the state … was first coined by Plato and Aristotle … and then
rediscovered and elaborated by religious scholars — notably Thomas Aquinas —
during the Middle Ages’.
On the other hand,
it is also true that contemporary discussions of the rule of law often start
with the views of the 19th-century English constitutional lawyer Albert Venn
Dicey (1835–1922). Dicey contended that the rule of law encompasses three basic
elements: (1) supremacy of the ordinary law as opposed to the exercise of
arbitrary power; (2) equality of all before the ordinary law that must be
administered by ordinary courts; and (3) judicial protection of individual
rights that must be guaranteed in practice rather than on paper.
Among the nations of
continental Europe the rule of law is traditionally connected with classical
liberalism and its perspective of a constitutional government that is ‘bound by
the law in its dealings with citizens: its power is in other words limited by
the individual rights of the people’.
The German concept of Rechtsstaat, for example, can be best translated
as ‘government under the rule of law’. The term was originally conceived by
leading Hanoverian jurists of
the 19th century, particularly Robert
von Mohl, E Brandes, A W Rehberg and F C Dahlmann, who wished topromote
individual rights and freedoms as well as the doctrines of separation of
government powers and limited government.
In those days the sovereign of Hanover was also the monarch of England.
There was an obvious connection between those countries. Inspired by the
English Whig tradition, Mohl coined the phraseRechtsstaatto
support a set of principles that ‘irrevocably determines and secures the
directions and the limits of state activity’.Rechtsstaat, saysErnst-Wolfgang Böckenförde, still remains in Germany ‘primarily the
recognition of fundamental civil rights … such as civil liberty (protection of
personal freedom, freedom of belief and conscience, freedom of the press,
freedom of movement, freedom of contract, and freedom of occupation), equality
before the law, and the guarantee of (acquired) property’.
theorists in France approach the rule of law in light of classical liberal principles.
BlandineKriegel, for example, defines the rule of law (État de Droit) primarily as ‘a matter of personal liberty that
‘cannot be secured absent of a certain type of state, namely … the state under
the rule of law’.
In another book on the subject, Laurent Cohen-Tanugiargues that État de Droitexpresses an ideal of
constitutional government that is opposed to Jacobinism, thus effectively
provideing legal protection against any legislative encroachment upon our
individual rights to life, liberty and property.
Formal and Substantive Conceptions of the Rule
In English-speaking countries the ongoing
debate over the meaning of the rule of law has been carried out between
advocates of its formal conception and those of its substantive conception.
Those holding to formal conceptions contend that the rule of law encompasses
attributes concerning the form of laws, such as, as a general rule, that law
must be stable, publicised, clear and general. By contrast, proponents of
substantive conceptions go beyond such formal descriptions to include a broader
discussion concerning the legal protection of moral rights.
Both conceptions, however, agree that the rule of law acts as a mechanism to
minimise arbitrariness in general, and political arbitrariness in particular.
Those who subscribe to formal conceptions of
the rule of law associate it with procedural and institutional requirements
which are thought necessary for the implementation of ‘government under law’.
They postulate a more literal interpretation of the phrase and so they focus on
addressing the manner in which positive laws ought to be promulgated, as well
as any other formal aspects such as their clarity and temporal dimension.
Paul Craig comments:
Formal conceptions of the rule of law do not …
seek to pass judgement upon the actual content of the law itself. They are not
concerned with whether the law is in that sense a good or a bad law, provided
that formal precepts of the rule of law are themselves met.
Joseph Raz is a legal positivist and strong
proponent of the formal conception of the rule of law. According to him, the
rule of law entails public authorities conducting their affairs in accordance
with specific procedural requirements. This requires legislation, for example,
to be mostly general, prospective, open, clear and relatively stable. Raz also
contends that in every rule of law regime, independent courts should uphold
certain principles of natural justice, such as fair hearings and the absence of
bias. Finally, he thinks that in such regime the courts are without long delays
and excessive costs, and are accessible to every citizen.
mentioned above, formal conceptions of the rule of law do not really concern
themselves with substantive outcomes. Raz sees no promise of substantive
justice in an ideal such as the rule of law. While his formal conception
maintains that principles of procedural fairness may increase the prospects for
individual autonomy, no promise of substantive justice is made. Indeed,
‘formalists’ like Raz interpret the rule of law only in terms of restraint of
private violence and undue government coercion, to ensure that citizens are
protected against lawlessness and anarchy.
Even so, the rule of law is still seen by them as encompassing nothing more
than a negative value, which is therefore ‘merely designed to minimize the harm
to freedom and dignity which the law may cause in its pursuit of its goals
however laudable these may be’.
But since Raz also believes that the rule of law is not to be confused with
such values as democracy, justice and equality, he concludes, rather
… [a] non-democratic legal system, based on
the denial of human rights, or 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. This does not mean that it will be better
than those Western democracies. It will be an immeasurably worse legal system,
but it will excel in one respect: in its conformity to the rule of law.
In contrast to those holding to formal
conceptions, proponents of substantive conceptions of the rule of law contend
that, under a rule of law system, laws must be structured around certain moral
rights and duties that citizens ought to possess towards one another and the
society as a whole, including state authorities. In other words, upholders of
substantive conceptions make a very clear distinction between ‘good’ laws,
which comply with protection of these moral rights, and ‘bad’ laws, which do
The Austrian libertarian philosopher
Friedrich Hayek was one of the leading advocates of the substantive concept of
the rule of law. Hayek contended that the rule of law is a meta-legal doctrine
or a political ideal concerning what the law ought to be.
For him, the phrase is traditionally related to ‘essential conditions of
liberty under the law’.
In The Road to Serfdom (1944) Hayek
The Rule of Law was consciously evolved only
during the liberal age and is one of its greatest achievements, not only as a
safeguard but as the legal embodiment of freedom. As Immanuel Kant put it …,
‘Man is free if he needs to obey no person but solely the laws’. As a vague
ideal it has, however, existed at least since Roman times, and during the last
few centuries it has never been as seriously threatened as it is today. The
idea that there is no limit to the powers of the legislator is in part a result
of popular sovereignty and democratic government. It has been strengthened by
the belief that so long as all actions of the state are duly authorized by
legislation, the Rule of Law will be preserved. But this is completely to
misconceive the meaning of the Rule of Law. Thishas little to do with the
question whether all actions of government are legal in the juridical sense.
They may well be and yet not conform to the Rule of Law. The fact that somebody
has full legal authority to act in the way he does gives no answer to the
question whether the law gives him power to act arbitrarily or whether the law
prescribes unequivocally how he has to act. It may well be that Hitler has
obtained his unlimited powers in a strictly constitutional manner and that
whatever he does is therefore legal in the juridical sense. But who would
suggest for that reason that the Rule of Law still prevails in [Nazi] Germany?
Hayek recognised the
relevance of ‘public opinion’ for the realisation of the rule of law. Since the
rule of law is a doctrine about what the law ought to be, he concluded that the
rule of law cannot be realised unless it forms a part of ‘the moral tradition
of the community’. Its realisation depends, therefore, on how widely recognised
the rule of law becomes in society, in terms of a common ideal to be shared and
unquestionably accepted by most members of the community. Hence, Hayek comments
in The Constitution of Liberty
From the fact that the rule of law is a
limitation upon all legislation, it follows that it cannot itself be a law in
the same sense as the laws passed by the legislator … The rule of law is
therefore not a rule of the law, but a rule concerning what the law ought to
be, a meta-legal doctrine or a political ideal. It will be effective only in so
far as the legislator feels bound by it. In a democracy this means that it will
not prevail unless it forms part of the moral tradition of the community, a
common ideal shared and unquestionably accepted by the majority. It is this
fact that makes so very ominous the persistent attacks on the principle of the
rule of law. The danger is all the greater because many of the applications of
the rule of law are also ideals which we can hope to approach very closely but
can never fully realize. If the ideal of the rule of law is a firm element of
public opinion, legislation and jurisdiction tend to approach it more and more
closely. But if it is represented as an impracticable and even undesirable
ideal and people cease to strive for its realization, it will rapidly
disappear. Such a society will quickly relapse into a state of arbitrary
tyranny. This is what has been threatening during the last two or three
generations throughout the Western world.
In a rule of law
system, says Hayek, equality before the law is prioritised and legal
discrimination minimised. Legal discrimination can only acceptable, he
continues, if the majority both inside and outside the discriminated group
Although the law does not have to be the same for everybody, ‘positive
discrimination’, Hayek observes, can only be acceptedif such discrimination
advances the common good. As a rule, however, and for the sake of preserving
formal equality, Hayek argues that legal rules must treat everybody the same,
regardless of class, race, gender and so forth.
Alongside Hayek’s contribution, the
jurisprudential work of the American liberal legal philosopher Ronald Dworkin
is quite important in such discussions concerning the nature of the rule of
law. Dworkin’s work, in a nutshell, amounts to an attack on the positivist
assumption of law and morality as clearly separate concepts. His legal
philosophy is self-described as ‘law as integrity’. Central to this is the
question about moral principles that, if followed, would account for most of
the political decisions society has taken. Such a philosophy seeks therefore to
reconnect the law with morality on the basis that the nature of a legal
argument lies in the moral interpretation of the existing social practices.
In this sense, the
rule of law is defined by Dworkin as an ideal of the ‘good law’ that is
inextricably linked to the idea of ‘moral rights and duties’, as well as the
protection by law of ‘political rights against the state as a whole’.
These moral rights, according to Dworkin, comprise those social values that
‘should be recognized in positive law’, and so enforced through the courts upon
the invocation of individual citizens. For Dworkin, even if these moral rights
are not explicitly manifested in any particular legal rule, such rights still
form the intrinsic part of every constitutional order that is based on the rule
of law, because the rule of law, according to him, involves the community’s
effort to capture rights and duties that are deemed by its citizens as
desirable for everyone on the various grounds connected with matters of
individual autonomy and justice.
Dworkin, however, is
broadly seen as a strong advocate of judicial activism. After defining the rule
of law in terms of ‘the ideal of rule by an accurate public conception of
he goes on to say that, in controversial cases, court decisions ought to be
based on arguments of political principle which confirm ‘that justice is in the
end a matter of individual right, and not independently a matter of the public
For Dworkin, if one were to limit the interpretative tools of the judiciary,
the rights of citizens would be restricted ‘to those recognized by a limited group of people at a fixed date of
As such, judicial activism is seen by him as a form of legal pragmatism. Were it not for this, then the
rights of citizens would stagnate at their existing level, and be unable to
evolve as new and unpredictable circumstances arise. In sum, Dworkin believes
that judicial activism amounts to a strong type of unhindered common sense on
behalf of the judiciary. Of course, by legitimising the activist behaviour of
unelected judges who wish to dictate substantive policies without the proper
consent of the people, Dworkin can be easily accused of ultimately promoting
judicial actions that can quite easily undermine both democracy and the rule of
T R S Allan
English constitutional lawyerTrevor R.S. Allan
believes that the rule of law refers to standards, expectations and aspirations
that ‘encompass traditional ideas about individual liberty and natural justice
and, more generally, ideas about the requirements of justice and fairness in
the relations between governors and governed’.
For him, compliance with procedural legal principles, such as generality,
clarity, non-retroactivity, as well as (formal) equality before the law,
comprise inherent moral values associated with the realisation of the rule of
law. Such values, Allan continues, enhance autonomy by allowing the individual
citizen the ability to organise his or her own affairs and to evaluate (and
criticise) government actions in accordance with those principles.
Allan also argues
that ‘the ultimate meaning of the rule of law’ consists in the equal dignity
He asserts that in every rule of law system, basic individual rights ought to
be protected by ‘an independent judiciary with authority to invalidate
legislation if necessary’.
As a result, the rule of law would serve to promote a robust order of
‘constitutional justice’ in which ‘the law is to constitute a bulwark between
governors and governed, shielding the individual from hostile discrimination on
the part of those with political power’.
Above all, Allan reminds us:
In the mouth of a British constitutional
lawyer, the term ‘rule of law’ seems to mean primarily a corpus of basic
principles and values, which together lend some stability and coherence to the
legal order. It expresses his commitment to a scheme of ideas regarded as
legally fundamental. They help to define the nature of the constitution, reflecting
constitutional history and generating expectations about the conduct and
character of modern government … Allegiance to the rule of law is not,
therefore, a technical (or even ‘lawyerly’) commitment; it is necessarily
allegiance to a political philosophy — albeit a practical philosophy grounded
in existing constitutional tradition.
Jeffrey Goldsworthy is an Australian legal
philosopher and expert on the English constitutional concept of ‘Parliamentary
him, the rule of law is ‘first and foremost a political principle’; an ideal or
aspiration that is subject to limitations and qualifications due to other legal
principles that vary from one jurisdiction to another.
As a political principle, Goldsworthy contends that ‘the rule of law is a
‘supra-national’ concept of potentially universal significance, rather than a
legal principle of a particular jurisdiction’.
Since positive law ‘might not adequately protect the rule of law’, Goldsworthy
concludes that, as an ideal of legality, the rule of law requires much more
than a mere ‘legal rule’.
suggests that ‘the rule of law is about limiting or controlling what would
otherwise be arbitrary power, whether it be exercised by public officials or by
Although he criticises most ‘thick’ (substantive) conceptions for being too
broad and incorporating almost every political virtue,he
sees ‘good reasons’ to go beyond purely formal conceptions of the rule of law.
For instance, Goldsworthy thinks that a country plagued by ‘entrenched
corruption, populism, authoritarianism, or bitter religious, ethnic and or
class conflicts’ may in actual fact necessitate ‘judicially enforceable bills
of rights’ so as to make the rule of law a reality in practice and not just in
theory. However, he argues, ‘much depends on culture, social structure and
Elements of the Rule of Law
The experience garnered from many countries
across the world points to the relevance of certain standards of legality
perceived as necessary for the achievement of the rule of law. These standards
define the basic characteristics of every legal system that is truly based on
the rule of law. What
follows is a compilation of principles and institutions that are considered
necessary for the realisation of the rule of law.
1. Laws against
private coercion. One of the most accepted purposes of the rule of law is
that laws must prohibit any form of coercion and violence so that citizens are
protected against lawlessness and anarchy. As
such, the check on arbitrariness which the rule of law promises is deployed not
only against the government but also ‘in the private domain where arbitrary
social power … needs to be checked and regulated’. Indeed,
as Goldsworthy points out, ‘chronic lawless violence inflicted by some citizens
on others would surely be as antithetical to the rule of law as the lawless
tyranny of a king or emperors’.
Although people who
are inclined to break the law may be deterred by a real possibility of
punishment, this control is more effective in societies that normally respect
legality by approving of those who abide by legal rules and disapproving of
those who violate them. For Ralf Dahrendorf, ‘if breaches of norms become
sufficiently massive the application of sanctions becomes by the same token
extremely difficult and sometimes impossible’.
Society needs, in H L A Hart’s words, to ‘accept these rules as common
standards of behaviour and acknowledge an obligation to obey them, or even
trace this obligation to a more general obligation to respect the
this occurs, citizens voluntarily comply with the law and the rule of law plays
a fundamental role in society, becoming the main mechanism for the regulation
of human behaviour and interactions.
2. Laws should be
clear, certain, adequately publicised and normally prospective. If laws are
unclear, uncertain, or not adequately publicised, people will be unable to more
properly obey them, not knowing what the law really requires of them. They will
be left unable to conduct their private affairs with a satisfactory level of
security, owing to a lack of knowledge concerning the content of the laws
affecting them. With legal certainty and clarity, wrote Neil MacCormick,
citizens can ‘have reasonable security in their expectations of the conduct of
others, and in particular of those holding official positions under law’.
The rule of law does
not endorse excessively vague laws that delegate to public agencies the power
to deal arbitrarily with citizens.
A regime holding to the rule of law forbids ex
post facto legislation, unless such retroactivity can be reasonably applied
for the benefit of legality itself, in terms of correcting irregularities of
the legal form. As Lon Fuller pointed out, ‘it is when things go wrong that the
retroactive statute often becomes indispensable as a curative measure; though
the proper movement of law is forward in time, we sometimes have to stop and
turn about to pick up the pieces’.
3. The rule of law
implies a certain generality of law.The
idea of generality asserts that laws must not contain proper names but rather
apply to general classes of individuals.
This particular understanding of generality holds that laws should act
impersonally so as to reduce the scope for discrimination.
The objective is not to impose a condition of substantive equality amongst the
citizens but to prevent laws from unnecessarily harming individuals and/or
The goal of the rule of law is not to promote the interests of some
people at the expense of others, but to protect everyone without any distinction whatsoever. However, the principle of
equality before the law is not absolute. Public officials will need special
powers that ordinary citizens do not. Even so, what this underlying principle
advances is that any such legal differences should be minimised. Such special
powers must be attached not to the person but to the public office or position
and they have to be interpreted narrowly as being exercised only for the common
The rule of law
rests on ‘a strong perception that it is wrong to use the law to place the
interests of some people ahead of others’.
As such, the rule of law is better realised when the citizens are treated equally
by the law, since law in such cases ‘only pursues objectives that are good for
everyone and not those that only benefit a few’.
Of course, this does not imply a commitment to equality of material outcomes.
As Montesquieu put it, ‘as distant as heaven is from the earth, so is the true
spirit of equality [before the law] from that of extreme equality’.
So rather then seeking to bring about material equality, the rule of law is
about achieving an equitable system in which everyone is treated as equal
citizens before the law, without any prejudice derived from origin, race, sex,
age and any other (unreasonable) form of legal discrimination or privilege.
Legal generality does not necessarily require
that laws always possess universal application. However, it implies ‘a rational
and non-arbitrary basis for differential treatment of individuals and groups’. According to
Jeremy Waldron, ‘the rule of law does not prohibit the making of particular
legal orders … but it insists that the making of such orders should be guided
by the application of universal rules … or at least justified in terms of
Hence, generality becomes a means by
which laws should reflect the community’s best interests and reject the mere
will or caprices of a few powerful individuals. This does not mean, however,
that laws cannot draw some distinctions based on age, sex, and so on, if there
are good reasons for doing so.
4. Laws should be
as stable as possible. The rule of law can be developed if legislation is
constantly repealed or substantially modified. The aim of legal stability is to
facilitate individual planning and to enable a ‘fruitful interaction’ between
Legal stability is therefore an important condition for citizens to know the
laws with which they must comply. And yet, constant changes to the law make it
extremely hard, if not impossible, for citizens to plan their lives according
Finally, judges may also undermine the rule of law by bringing uncertainty and
unpredictability to the legal system. If trials are often seen as completely
uncertain and not objectively just, argues Justice Heydon of the High Court of
Australia, then ‘the chances of peaceful settlement of disputes are reduced and
the temptation to violent self-help increases’.
5. Laws limiting,
controlling and guiding the exercise of official discretion.The rule of law
regulates the sphere of action by public officials. Such officials must
consider laws as ‘common standards of official behaviour and appraise
critically their own and each other’s deviations as lapses’. A
government under the rule of law is a government whose legitimacy resides in
the exercise of power in accordance with legal norms. In such a context,
citizens do not owe obedience to the person who holds power but rather to the
impersonal order which confers such power on him or her. The
idea of impersonal order as a legally circumscribed structure of power is a
fundamental element of Weberian interpretation of the rule of law. According to
Max Weber, the ‘rational-legal’ context of the rule of law implies ‘that the
person who obeys authority does so, as it is usually stated, only in his
capacity as a member of the corporate group and what he obeys is only the law’.
In order to protect
the citizen from undue political arbitrariness, there must be no detention
without charge, or convictions without sufficient evidence.
Such circumscription stems from the principle that the citizen must be
protected by due process of law. The expression ‘due process’ involves the
existence of legal proceedings designed to allow anyone accused of criminal
offence or civil wrong to be heard in a regular court and be informed of the
nature of the accusation.
There is, moreover, a general agreement that ‘due process’ encompasses the
presumption of innocence in criminal cases and the right to be judged
6. The courts must
be independent, impartial and accessible to everyone. In a system that
adheres to the rule of law, citizens must be endowed with the basic right to
submit their complaints before the impartial adjudication of an independent
court system. Furthermore, access to the courts must be provided without long
delays, corruption or excessive legal costs, as such issues can turn even an
‘enlightened’ legislation into a dead letter.
Central to the rule
of law tradition is a conviction that the division of governmental functions
comprises ‘a critical aspect of every system of government which hopes to
combine efficiency and the greatest possible exercise of personal freedom’.
The idea rests upon the idea that whenever the power of the state becomes too
highly concentrated in the hands of a person or political agency, the risk of
arbitrariness increases as a result. A truly independent judiciary may compel
public authorities to respect the proper limits of the law. Brian Z Tamanaha
explains the rationale for such a division of government powers:
Freedom is enhanced when the powers of the
government are divided into separate compartments — typically legislative,
executive, and judicial (horizontal division), and sometimes municipal, state
or regional, and national (vertical division) … This division of powers
promotes liberty by preventing the accumulation of total power in any single
institution, setting up a form of competitive interdependence within the government.
Some may hold that a
full separation of powers (as is the case in the United States) is essential to
the realisation of the rule of law. However, it is important to consider that
the British constitutional system does not separate the executive branch
(Cabinet) from the legislative branch (Parliament). The executive, however,
does not interfere in the day-to-day workings of the English courts, and the
tenure of judges has been protected from undue political pressure.
In 1701, the Act of Settlement conferred on English judges the right to stay in
office quam diu se benegesserint (as
long as behaving properly). It also required that the salaries of judges be
determined by means of statutory provision. As Mortimer Sellers points out,
‘[t]he Act of Settlement was a turning point in the progress of the rule of
law, which made Britain the envy of other European nations’.
Ever since, the law in Britain regulates both tenure and removal of judges and
it requires the assent of both Houses of Parliament for their impeachment.
The subjection of
judges to the government offers the potential to undermine all prospects of
impartial administration of justice according to law. Only the members of a
truly independent judiciary are enabled, in due conscience and freedom, to
‘reprimand the government and even force it to obey the law and redress
injustice’. On the
other hand, as John R Morss says, ‘law is a constraint on the judiciary as well
as on the executive’.
Even if an independent judiciary might serve as the ultimate guarantor of the
rule of law, ensuring that nobody can violate laws with impunity, independence
by itself does not guarantee impartiality, which is also one of the goals of
the rule of law.
Independence without strict impartiality, indeed, can make judges a law unto
themselves. The legal system needs therefore to ensure that the arbitrators
(that is, judges) will not themselves become too arbitrary. Judges must be
guided by legal norms and principles every time they pass their rulings.
In conclusion, even if constitutionally secured, judicial independence ‘does
not necessarily deliver impartial law enforcement, which is one of the things
we hope to gain from the rule of law’.
7. The rule of law
stands in opposition to extemporary decisions expressing the mere personal will
of individual judges.It is generally observed that the rule of law
necessitates the existence of clear, stable, general norms, which must then
apply equally to everyone regardless of a person’s social status or position.
Characterised in this way, the rule of law cannot be developed if judges pass
rulings without being respectful of the existence and content of legal rules.
This being the case, Pasquale Pasquino comments:
… the person who judges exercises, in a sense,
the most worrying power of all. In daily life it is not the legislator who
renders judgement or passes sentence, but the judge … The judge protects the
citizen from the caprices and arbitrary will of the legislator, just as the
existence of the law protects the accused from the caprices and arbitrary will
of the judge.
or ineptitude pervades the judiciary’, says Brian Tamanaha, ‘the rogue judge
will be checked by … other judges, either sitting on the same panel or at high
levels of appellate review’.
Hence, judges need to understand that no one, not even judges themselves, has
the right to ignore the law. In fact, judges who abuse their position to
satisfy their own personal interests cannot possibly be described as equitable
upholders of the law. According to Murray Gleeson, a former Chief Justice of
the High Court of Australia:
Judges are appointed to interpret and apply
the values inherent in the law. Within the limits of the legal method, they may
disagree about those values. But they have no right to throw off the
constraints of legal methodology. In particular, they have no right to base
their decisions about the validity of legislation upon their personal approval
or disapproval of the policy of the legislation. When they do so, they forfeit
In this sense, the
power of judges to ‘create’ law is not to be exercised in absolute dissonance
with the existing legal system. ‘Since [every judge] is bound to administer
justice according to law, including legislation of which he may
disapprove’, explains T R S Allan, ‘he must faithfully accord every Act of
Parliament its full and proper application’.
Of course, one must accept that a judge may sometimes need, where there is
ambiguity, vagueness, inconsistency, or a ‘gap’, to complement the existing law
with innovative rulings. But it does not follow from this that he or she is
authorised to ignore the law enacted by the elected parliament merely because
he or she may not personally appreciate its provisions. The case against such
an anti-legal judicial attitude was placed in more classical terms by the late
US constitutionalist Thomas M Cooley:
The property or justice or policy of
legislation, within the limits of the Constitution, is exclusively for the
legislative department to determine; and the moment a court ventures to
substitute its own judgement for that of the legislature, it passes beyond its
legitimate authority, and enters a field where it would be impossible to set
limits to its interference, except as should be prescribed in its own
Rule of Law as a Culture of Legality
Regardless of which conception of the rule of
law is embraced, its practical achievement appears to require a proper culture
of legality. Such a
culture must incorporate a positive attitude towards legal norms, as would be
demonstrated by a socio-political context in which ordinary citizens and public
officials manifest a serious commitment to principles and institutions of the
rule of law. Commitment is demonstrated by generally complying with legal rules,
insisting on their compliance, criticising those who fail to comply with them,
and, finally, taking whatever action is necessary to correct any lack of
When a government
does not acknowledge any subjection to the rule of law, power will rest not so
much on basic (constitutional) provisions as on the ‘concrete’ supremacy of the
Political rulers who are not willing to subject themselves to a system of
constitutional checks and balances can easily place themselves above the law.
They may exercise their power per leges(by law) but never sub leges
(under the law). ‘Law’ is then transformed into an ‘instrument for repression
or at least top-down direction of subjects, and nothing more’.
When this occurs citizens are subject to a form of arbitrariness in which ‘law’
becomes no more than a ‘vehicle (and at times equally useful camouflage) for
the exercise of unrestrained and uncivilized power’.
At this point, it is
important to consider that law is not always the primary source of political
Indeed sociologists argue that there are other ways in which society can
recognise this power other than through law. On the basis of charismatic
leadership, for example, the late German sociologist Max Weber explained that
political power is socially endorsed by means of ‘devotion to the exceptional
sanctity, heroism, or exemplary character of an individual person, and of the
normative patterns or order revealed or ordained by him’.
This development results in a reality where ‘charisma’ is more important than
law, and the rule of law is then not seen by society as the most acceptable
element of power recognition. Sir Ivor Jennings noted:
If it is believed that the individual finds
his greatest happiness, or best develops his soul, in a strong and powerful
State, and that government implies … the unity of the nation behind a wise and
beneficent leader, the rule of law is a pernicious doctrine.
There is indeed a danger
in exaggerating claims about what the positive law can deliver in terms of
achieving the rule of law. Martin Krygier has demonstrated the intrinsic
correlation between the rule of law and its socio-politico-cultural milieu.
According to him, the realisation of the rule of law ‘depends as much on
characteristics of society as of the law, and on their interactions’.
As Krygier points out:
Even if you conclude that legal institutions
of certain kinds are necessary to achieve [the rule of law], they will never be
sufficient. The institutions … have to count in social life, and what makes law
count, still more what makes it count as a restraint on arbitrary power, is one
of the deepest mysteries of the rule of law, and it does not just depend on the
law. For what ultimately matters is how the law affects those to whom it is
directed, not how, or the particular forms in which it is sent. We, lawyers
especially, know a lot about the latter but much less than we imagine about the
former … What we need, and what we don’t have is a political sociology of the
rule of law, but only with that will we be able to say with any confidence,
though still not in one-size-fits-all terms, how to instantiate it.
In this sense,
Krygier observes that the rule of law is not just a matter of ‘detailed
institutional design’, but an ‘interconnected cluster of values’ that can be
pursued in a variety of institutional ways.
For him, the empirical reality that the rule of law has ‘thrived best where it
was least designed’
is good evidence that this ideal of legality is more about a ‘social outcome’
(that is, the restriction of government arbitrariness) than just a ‘legal
sum, Krygier understands that the achievement of the rule of law rests
primarily on extra-legal circumstances of ‘social predictability’ and not only
formal institutional mechanisms.
history of Britain provides an example that the rule of law may indeed depend
less on formal recipes for legal institutional design than on the particular
efforts of the community to produce socio-politico-cultural conditions of
government under law. Although the country lacks a written constitution, it is
still recognised as possessing a more orderly polity than the majority of its
former colonies, some of which have de jure democratic constitutions.
However, these constitutions ‘may be missing the tacit social approval that is
needed to keep those documents alive’.
The rule of law was developed in Britain despite the absence of legal
institutional elements of the rule of law, such as separation of government functions
between the legislative and the executive as well as judicial review of
legislation, which have often been regarded as essential for its realisation.Tamanaha
The rule of law existed [in Britain] owing to a
widespread and unquestioned belief in the rule of law, in the inviolability of
certain fundamental legal restraints on government, not to any specific legal
mechanism. This answer to the ancient puzzle of how the law can limit itself is
that it does not — attitudes about law provide the limits.
What appears to give
‘real life’ to the rule of law lies in the socio-political environment, which
according to Lawrence M Friedman, ‘is constantly at work on the law —
destroying here, renewing there; invigorating here, deadening there; choosing
what parts of law will operate, which parts will not; what substitutes,
detours, and bypasses will spring up; what changes will take place’.
Hence, if compliance with laws does not rest on a firm element of public
morality, then the rule of law may become ‘an impracticable and even
undesirable ideal, and … society will quickly relapse into a state of arbitrary
Indeed, the realisation of the rule of law rests upon ‘an attitude of
restraint, an absence of arbitrary coercion by governments or by other
individuals or groups’,
which can only be so if society embraces a culture of legality that requires
‘the virtue of a populace that will enjoy its benefits’.
According to Noel B Reynolds:
The rule of law does poorly in cultures where
it is not the fundamental expectation that a people has of its government … If
people do not expect the rule of law and insist on it when officials move to
compromise its effect, it is soon corrupted and replaced by rule of will. Rule
of law seems to require this virtue of any populace that will enjoy its
cultural and social factors indeed play a much more important role in the
realisation of the rule of law than the politically correct literature on the
subject appears to indicate or acknowledge. In the long run, the rule of law
can never be attained only by a constitutional framework or the institutional
design of a well-written constitution. Above all, the practical realisation of
the rule of law requires, as Philip
Selznick pointed out:
… a culture of lawfulness, that is, of routine
respect, self-restraint, and deference … Furthermore, the rule of law requires
public confidence in its premises as well as in its virtues. The premises
include a dim but powerful understanding that positive law is always subject to
correlation by standards of truth and justice. In a rule-of-law culture,
positive law does not have the last word.
The Rule of Law and its Enemies
The rule of law has attracted critics who
have contended that the formalism and neutrality engendered by the concept may
be used by the ruling elites to disguise social hierarchy and exploitation.
Critical legal theorists, for example, argue that its advocacy of equality
before the law comprises an ‘ideological screen’ to hide the ‘hypocritical and
egoistical character of the rule of law’.
Relying on postmodern principles, such critics ‘dissect’ the law so as to
discover subjective meanings no matter what the law objectively states. Such a
critical analysis begins with the assumption that legal objectivity and
impartiality are myths constructed by the socially more powerful in order to
perpetuate their hegemonic power over other less powerful members of the
theorists of the rule of law ‘share a left-leaning or progressive outlook’,
some of them have a narrower focus that ‘concentrate[s] on race and gender
issues, and particularly on how the law creates or contributes to unequal power
course, there are also very strong feminist critiques of the rule of law.According
to feminist jurist Kelly Weisberg, ‘the values that flow from women’s material
potential for physical connection are not recognised as values by the rule of
believes that, as a concept, the rule of law is too ‘masculine’ and that the
laws ‘we actually have are both masculine in terms of their intended
beneficiary and authorship’.
theory (but not all feminist theory) relies and overlaps with concepts first
developed in Marxist theory. One of these is the assertion that traditionally
women experience some kind of ‘false consciousness’ derived from gender
ideology. Accordingly, a radical Marxist reading of gender relations regards
rule-of-law principles such as equality before the law as too male-centric and not
taking into account the specific requirements of women. In the same way that
Marxism identifies capitalism as an
all-encompassing system stamping its character on the entire society,
radical feminism will regard any instance of oppression against women in
society as a result of ‘patriarchal society’ and, by extension, an oppression
of the rule of law. Hence such feminism seeks to draw parallels between ‘gender
struggle’ and the classical Marxist concept of ‘class struggle’ so that just as
Marxism attributes all evil to the division of labour, radical feminism then locates it in the sexual division of labour.
Accordingly, both Marxism and radical feminism will result in justice becoming captive to an ideological agenda,
which may result in further instances of social injustice, because of the
obvious lack of impartially weighing
the respective claims of diverse citizens.
theorists are also strong opponents of the rule of law. They base such a
criticism on parallel arguments as those of radical feminism, thus contending
that the ‘autonomy, impartiality and rationality’ of the rule of law promotes
the discrimination against people from cultural backgrounds who may not hold
such values in high esteem. Moreover, these critical theorists claim that by
focusing on these attributes the rule of law makes no allowance for different
cultural backgrounds and values, so that there is a failure to take into
consideration the more specific requirements of these ‘marginalised groups’.
Critical race theory, of course, is not about the diversity of
individual choices, but only the ‘diversity of culture’. As such, individuals
are often seen as organically integrated into their own respective groups, and
invited to embrace their own ‘cultural values’ no matter whether these values
are good or bad for themselves as mere individuals. In placing the rights of
‘groups’ above the rights of every individual, critical race
theory, consciously or
not, may legitimise the oppression of women and other less empowered individuals
by the more powerful members of these minority groups. Indeed, multicultural
policies presently advocated by critical race theorists,‘often ends up providing cover for the most reactionary beliefs and
practices of other cultures, rather than encouraging the more liberal strands
to develop. An attentive ear is given mostly to the community elders and
traditionalists, who often are the least educated and most determined to
preserve their power in the status quo.’
Thus some of the most oppressive beliefs and practices of a particular minority
group are defended on ‘cultural grounds’, whereas the basic rights to its women
or children are denied.
Critical race theory therefore appears to invoke a certain degree of
genetic determinism by which the individual is primarily regarded as
emotionally and psychologically attached to his or her particular ethnic or
cultural group. Critical race theory thus flirts with the dangerous assumption
that ethnic and/or cultural practices are race-specific and/or genetically
oriented. In other words, the assumptions of critical race theorists may
reinforce the myth that one’s moral choices and character are predetermined by
one’s colour of skin or cultural background. The implications of this view are
cogently explained by the Thernstroms:
deliver the message that skin color matters–profoundly. They suggest that
whites and blacks are not the same, that race and ethnicity are the qualities
that really matter. They imply that individuals are defined by blood–not by
character, social class, religious sentiments, age, or education. But
categories appropriate to a caste system are a poor basis on which to build
that community of equal citizens upon which democratic government depends.
jurisprudence bases its own criticism of the rule of law on parallel arguments.
The rule of law, as mentioned above, requires law that is generally and
objectively applied. And yet, postmodern theory argues that the rule of law is
an impossible concept to realise, because neither of these two requirements can
actually be fulfilled. From a postmodern perspective, reason and objective
truth are simply the components of white male domination. As Farber and Sherry
point out, it is an ‘article of faith’ among the postmodernists ‘that legal
rules are indeterminate and serve only to disguise the law’s white male bias’.
Postmodernists therefore desire more fragmentation and subjectivity in the
application of the law than the rule of law tradition demands. In the end,
these theorists are intent on establishing ‘law’ as a tool of power for
political purposes. Accordingly, law becomes not an objective standard by which
to judge one’s behaviour, and preserve an orderly and more peaceful society,
but rather an ideological weapon to beat political opponents into submitting to
any particular point of view.
This article has critically reviewed the
concept of the rule of law. The difference between formal and substantive
conceptions of the rule of law was broadly discussed, as well as how the ideal
of the rule of law aims to reduce the problem of governmental arbitrariness.
Under a rule of law regime all public authorities, including judges and
politicians, must be subject to legal rules and principles that are ‘thought to
be desirable on various grounds connected with liberty and justice’.
While this article has revealed principles and institutions of the rule of law,
it went further than this so as to explain how its practical realisation does
not offer a comprehensive recipe for legal institutional design. Above all, the
realisation of rule of law seems to depend upon a socio-politico-cultural
milieu that requires a proper context of respect for legality and, as such, the
legal rights and freedoms of the individual citizen. Of course, not everybody
will agree with the ideal of the rule of law: radical critical legal theorists
certainly do not. They think the rule of law is just an instrument used by the
economic elites to deceive the masses and to justify socio-economic oppression
that takes place in capitalist societies. Of course, this merely confirms the
basic argument in this article that the realisation of the rule of law, indeed,
is as much a socio-politico-cultural achievement as it is a legal institutional
J Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, Cambridge
University Press,Cambridge, 2010, p 58.
Montesquieu, above note 3, Bk VIII, Ch 3.
Benjamin Constant wrote: ‘It is the
imprudent multiplication of laws which in some periods has thrown discredit
upon the most noble of things, on liberty itself, and made men seek refuge in
the most miserable and lowest of them, servitude’ (B Constant, Political Writings, Cambridge University
Press, Cambridge, 1988, p 195).
R Mott, Due Process of Law, Da Capo, New York, 1973, p 592. The first
mention of ‘due process’ in history appeared about seven centuries ago, in
1344, when the English Parliament successfully compelled King Edward III to
consent to a statutory law curbing his monarchical power. The section is worth
reproducing: ‘No man of what estate or condition that he be, shall be put out
of law or tenement, nor taken nor imprisoned, nor disinherited nor put to death
without being brought in answer by due process of law.’ The same expression,
‘due process’, would be later on enshrined in the Fifth Amendment to the US
Constitution, an amendment which says that no-one ‘shall be deprived of life,
liberty, or property without a due process of law’. Finally, a similar
provision is found in the famous 1868 Fourteenth Amendment to the US
Constitution, which declares that it is forbidden for any state of the US
Federation to ‘deprive any person of life, liberty or property without due
process of law, nor deny to any person within its jurisdiction the equal
protection of the laws’.
M N S Sellers, ‘An Introduction to the
Rule of Law in Comparative Perspective’ inM N S Sellers and T Tomaszewski, The Rule of Law in Comparative Perspective,
Springer,Dordrecht, 2010, p 5.
Krygier, above note 83, p 7.