3 Defining the Rule of Law

a) Content Free or Content Rich?

( The first academic and political controversy goes to the heart of what should be included within the notion of the rule of law. On one view, the rule of law should only be about the form of law and the procedures by which law is made. These aspects of the rule of law map onto Lord Bingham's sub-rules 1, 2, 6, and 7. This view does not prescribe any particular content for legal rules. In his 1977 article advocating this understanding, the legal philosopher Professor Joseph Raz argued strongly against 'the promiscuous use made in recent years of the expression "the rule of law"'.4 He offered a 'very incomplete' list of the 'principles that can be derived from the basic idea of the rule of law', which can be summarized as follows: all laws should be prospective, open, and clear; laws should be relatively stable; the making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules; the independence of the judiciary must be guaranteed; the principles of natural justice must be observed— meaning procedural fairness in decision-making by public officials; the courts should have review powers over the implementation of other principles; the courts should be easily accessible; and the discretion of the crime-preventing agencies should not be allowed to pervert the law. Raz draws the following conclusions.

One early, influential riposte to Dicey came from Professor Sir Ivor Jennings (1903-65). Jennings was a Fabian socialist who welcomed the increasing government regulation of business, social security provision, and who shared none of Dicey's hostility to the interventionist state. Jennings' own book

(The Law and the Constitution8 ) criticized the whole scope of Dicey's analysis, arguing that Dicey failed to deal with the powers of government: Dicey 'seemed to think that the British constitution was concerned almost entirely with the rights of individuals'.9 In fact, even when Dicey was writing, central and local government had considerable discretionary legal powers to carry out all sorts of functions from the compulsory purchase of land to restricting overseas trade. Jennings' assessment was that Dicey 'honestly tried [. . .] to analyse [the constitution], but, like most, he saw the constitution through his own spectacles, and his own vision was not exact'.10 In Appendix II of his book, Jennings considers Dicey's theory of the rule of law. In relation to Dicey's first meaning (the absence of arbitrary and discretionary powers), Jennings explains that what Dicey really meant was that 'wide administrative or executive powers are likely to be abused and therefore ought not to be conferred'.11 But the discretionary powers of ministers and local authorities were as much part of the 'regular' law of the land as any others. And while, of course, occasional abuse of power might occur, this was no reason for not conferring discretionary powers on officials. These powers were used to ensure socially progressive goals such as minimum standards of health and safety in workplaces and the clearing of slum housing. This, Jennings said, was of no interest to Dicey:

1 He then went on to identify and discuss eight 'sub-rules':

. (1) 'The law must be accessible and so far as possible intelligible, clear and predictable.' (2) 'Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.' (3) 'The laws of the land should apply equally to all, save to the extent that objective differences require differentiation.' (4) 'Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.' (5) 'The law must afford adequate protection of fundamental rights.' (6) 'Means must be provided for resolving, without prohibitive cost or undue delay, bona fide civil disputes which the parties themselves are unable to resolve'. (7) 'Adjudicative procedures provided by the state should be fair.' (8) 'The rule of law requires compliance by the state with its obligations in international law as in national law.'

So Raz argues for a negative, content-free, 'thin' version of the rule of law. If this is correct, then it is possible to say that an evil legal system (for example, one based on race or religious discrimination) could nonetheless be regarded as respectful of the rule of law if it conformed to required forms and processes

. A law removing the right to vote from members of a religious minority could be described as 'undemocratic' and 'wrong' but if the law was passed according to normal parliamentary procedures, was published and accessible to all, 4 'The rule of law and its virtue' (1977) 93 Law Quarterly Review 195, 196. 92 | Public Law: Text, Cases, and Materials and if there was adequate access to the courts for people who want to argue that they were not a member of that minority, then it could be rule of law-compliant. A content-free rule of law also takes little account of social and economic equality between people—what matters is formal equality. The French writer Anotole France captures this in his bon mot: 'The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.' So the rule of law is not concerned with socio-economic rights, such as rights to food, housing, health, and education. Only if economic equality directly impinges on one of the basic elements of the content-free rule of law, such as access to the courts, does it become relevant. A judge's quip that 'In England, justice is open to all—like the Ritz hotel' is frequently invoked a century after it was made whenever cuts to public funding of litigation (legal aid) are proposed.5 In Lord Bingham's words, 'denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law'.6 Why do some people believe that it is a good idea to confine the rule of law to formal matters and steer clear of the substance of the law? Professor Paul Craig (not himself a supporter of this content-free version of the rule of law) gave the following explanation to the House of Lords Constitution Committee.

J. Raz, 'The rule of law and its virtue' (1977) 93 Law Quarterly Review 195, 210-11 Conformity with the rule of law is a matter of degree, and though other things being equal, the greater the conformity the better—other things are rarely equal. A lesser degree of conformity is often to be preferred precisely because it helps realisation of other goals. In considering the relations between the rule of law and the other values the law should serve it is of particular importance to remember that the rule of law is essentially a negative value

. It is merely designed to minimise the harm to freedom and dignity which the law may cause in its pursuit of its goals however laudable these may be. Finally regarding the rule of law as the inherent excellence of the law means that it fulfils essentially a subservient role. Conformity to it makes the law a good instrument for achieving certain goals, but conformity to the rule of law is not itself an ultimate goal. This subservient role of the doctrine shows both its power and its limitations. On the one hand if the pursuit of certain goals is entirely incompatible with the rule of law then these goals should not be pursued by legal means. But on the other hand one should be wary of disqualifying the legal pursuit of major social goals in the name of the rule of law. After all the rule of law is meant to enable the law to promote social good, and should not be lightly used to show that it should not do so. Sacrificing too many social goals on the altar of the rule of law may make the law barren and empty.

3 Defining the Rule of Law

As a starting point, we need to work out what 'the rule of law' means. Throughout the twentieth century, it is a term that has become ever more widespread in academic legal writing, court judgments, parliamentary debates, and official documents. Section 1 of the Constitutional Reform Act 2005 (the only statute expressly referring to the concept) seeks to reassure us that reforms to the office of Lord Chancellor introduced by the government of Tony Blair 'does not adversely affect— (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor's existing constitutional role in relation to that principle'. International treaties also use the concept. The preamble to the European Convention on Human Rights (ECHR), written in the aftermath of the catastrophic breakdown of democracy in Europe, speaks of 'a common heritage of political traditions, ideals, freedom and the rule of law [. . .]'. The preamble to the Treaty on European Union states the EU 'draws inspiration' from 'the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, quality and the rule of law'. The World Bank (an international body that funds poverty-reduction projects in developing countries) routinely seeks to measure and lay down compliance conditions relating to the rule of law, believing these aid democratization and economic progress. 90 | Public Law: Text, Cases, and Materials But what do these references to the rule of law mean? One approach is to understand the rule of law as a list of essential characteristics relating to law and legal process that ought to exist in a good constitutional system. A recent attempt at this is by the late Lord Bingham (1933-2010) who was successively Master of the Rolls, Lord Chief Justice of England and Wales, and the Senior Law Lord. In a lecture subsequently elaborated on in a book, he argued that 'the core of the existing principle is [. . .] that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts'.

Sir Ivor Jennings, The Law and the Constitution, 5th edn (1958, London: University of London Press), pp. 310-11

Dicey [...] was much more concerned with the constitutional relations between Great Britain and Ireland than with the relations between poverty and disease on the one hand, and the new industrial system on the other. In internal politics, therefore, he was concerned not with the clearing up of the nasty industrial sections of towns, but with the liberty of the subject. In terms of powers, he was concerned with police powers, and not with other administrative powers.

(b) Dicey and his Critics

So far our exploration of definitions has focused on a contemporary dispute between content-free and content-rich conceptions of the rule of law. Into the mix, we now need to introduce a definition of the rule of law that continues to carry significant authority (as well as generating opprobrium from critics)—that of Professor A.V. Dicey (1835-1922). A Canadian academic has argued that for us to continue to focus on Dicey's work 'is to belabour a horse which is thought to have died so long ago, after assaults so numerous and savage, that humane considerations might dictate another line of investigation'.7 This is an attractive suggestion but Dicey's enduring influence requires that we take his work on the rule of law seriously. For Dicey, the rule of law was a particularly British achievement, marking out the United Kingdom as superior to other nations

(c) Sceptical Views

So far, we have considered two academic controversies about the rule of law: whether it is content-free or content-rich; and whether Dicey's groundbreaking writings on the subject withstand later criticisms. There is a third controversy. Some academics take the sceptical view that the rule of law is not a useful concept. In the following extract, Professor John Griffith (1918-2010)—a leading political constitutionalist of his generation, based at the LSE—berates what he saw as the extravagant and politically partisan use of the idea of 'the Rule of Law' (note the capital letters) in the 1970s by campaigners for incorporation of the ECHR into English law and other developments of which he disapproved.

More recently, Professor Martin Loughlin (of the LSE) expresses doubts on different grounds. The European Commission for Democracy through Law (the Venice Commission) invited Loughlin to prepare a discussion paper for their deliberations on the meaning of the rule of law.

M. Loughlin, 'The Rule of Law in European Jurisprudence', Study 512/2009 (Venice Commission, 2009) There is every reason to accept that the rule of law must be a mere slogan and that, however laudable its underlying intentions, the goal of achieving a 'government of laws and not of men' is one that is incapable of realization. One reason is that since in the modern era law is universally acknowledged to be a human creation, it cannot be placed above human will: law cannot therefore be placed above a 'government of men'. A second is that laws cannot be said to rule, for the obvious reason that ruling involves action and, in themselves, laws do not act. The rule of law, it would appear, is merely a rhetorical expression, and this conviction is reinforced by virtue of its intrinsic ambiguity: the ubiquity of usage of the expression, 'the rule of law', is matched only by the multiplicity of its meanings. [...] [... P]recision in public law might demand abandonment of these concepts altogether in favour of a less charged investigation into the nature of the relationship between state, constitution, governing and law. The difficulty is that the very ubiquity of the expression demands that it be examined, especially for the purposes of revealing its underlying values, 98 | Public Law: Text, Cases, and Materials determining whether any coherent account of the general concept can be assembled, and assessing the force of the claim that it is a foundational element of the discipline. In this paper [written for the Venice Commission], the origins of these expressions in English, German and French thought will be examined, and an argument made about the coherence of the directing idea. My argument will be that although a coherent formulation of the general concept can be devised, that this formulation is entirely unworkable in practice. Consequently, the rule of law cannot be conceived as amounting to a foundational concept in public law. So far as it has utility, it must be deployed with precision, especially because, precisely because it is unrealizable, it is susceptible to being used for ideological purposes. The main value of the concept, it would appear, concerns its aspirational quality. But acceptance of this quality must be tempered by recognition that the extent to which the directing idea can—and should—be realized remains an essentially political task

R. Dworkin, 'Political Judges and the Rule of Law', in A Matter of Principle (1985, Oxford: OUP), ch. 1, pp. 11-12 What is the rule of law? Lawyers (and almost everyone else) think that there is a distinct and important political ideal called the rule of law. But they disagree about what that ideal is. There are, in fact, two very different conceptions of the rules of law, each of which has its partisans. The first I shall call the 'rule book' conception. This insists that, so far as is possible, the power of the state should never be exercised against individual citizens except in accordance with rules explicitly set out in a public rule book available to all.

The government as well as ordinary citizens must play by these public rules until they are changed, in accordance with further rules about how they are to be changed, which are also set out in the rule book. The rule-book conception is, in one sense, very narrow, because it does not stipulate anything about the content of the rules that may be put in the rule book. It insists only that whatever rules that may be put in the rule book must be followed until changed. Those who have this conception of the rule of law do care about the content of the rules in the rule book, but they say that this is a matter of substantive justice, and that substantive justice in an independent ideal, in no sense part of the ideal of the rule of law. I shall call the second conception of the rule of law the 'rights' conception. It is in several ways more ambitious than the rule-book conception. It assumes that citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through the courts and other judicial institutions of the familiar types, so far as this is practicable. The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights. It does not distinguish, as the rule-book conception does, between the rule of law and the substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights. That is a complex ideal. The rule-book conception of the rule of law has only one dimension along which a political community might fall short. It might use its police power over individual citizens otherwise than as the rule book specifies. But the rights conception has at least three dimensions of failure. A state might fail in the scope of the individual rights it purports to enforce. It might decline to enforce rights against itself, for example, though it concedes citizens have such rights. It might fail in the accuracy of the rights it recognizes: it might provide for rights against the state, but through official mistake fail to recognize important rights. Or it might fail in the fairness of its enforcement of rights: it might adopt rules that put the poor or some disfavored race at a disadvantage in securing the rights the state acknowledges they have. The rights conception is therefore more complex than the rule-book conception. There are other important contrasts between the two conceptions; some of these can be identified by considering the different places they occupy in a general theory of justice. Though the two conceptions compete as ideals of the legal process (because, as we shall see, they recommend different theories of adjudication), they are nevertheless compatible as more general ideals for a just society. Any political community is better, all else equal, if its courts take no action other than is specified in rules published in advance, and also better, all else equal, if its legal institutions enforce whatever rights individual citizens have. Even as general political ideals, however, the two conceptions differ in the following way. Some high degree of compliance with the rule-book conception seems necessary to a just society. Any government that acts contrary to its own rule book very often—at least in matters important to particular citizens cannot be just, no matter how wise or fair its institutions otherwise are. But compliance with the rule book is 94 | Public Law: Text, Cases, and Materials plainly not sufficient for justice; full compliance will achieve very great injustice if the rules are unjust. The opposite holds for the rights conception. A society that achieves a high rating an each of the dimensions of the rights conception is almost certainly a just society, even though it may be mismanaged or lack other qualities of a desirable society. But it is widely thought, at least, that the rights conception is not necessary to a just society, because it is not necessary, in order that the rights of citizens be protected, that citizens be able to demand adjudication and enforcement of these rights as individuals. A government of wise and just officers will protect rights (so the argument runs) on its own initiative, without procedure whereby citizens can dispute, as individuals, what these rights are. Indeed, the rights conception of the rule of law, which insists on the importance of that opportunity, is often dismissed as legalistic, as encouraging mean and selfish concern with individual property and title. Going back to Lord Bingham's definition of the rule of law (discussed at the start of this section on p. 90), it clearly is not content-free. To comply with the rule of law as he defines it, there needs to be adherence to various formal and procedural aspects but additionally his sub-rules 5 and 8 require laws to comply with human rights. Human rights norms include requirements about the substance of the law, for example freedom of expression and freedom of association.

J.A.G. Griffith, 'The Political Constitution' (1979) 42 Modern Law Review 1, 15 [In recent years] 'the law' has been raised from its proper and useful function as a means towards ends (about which it is possible to have differing opinions) to the level of a general concept. On this view, individual rules of law may be good or bad but 'the law' is undeniably good and must be upheld or chaos will come again. There is more than a suspicion of slight [sic] of hand here. For nobody, except committed anarchists, suggests that 'the law' should be dispensed with.

The ground is then shifted slightly and what becomes sacred and untouchable is something called the Rule of Law. The Rule of Law is an invaluable concept for those who wish not to change the present set-up. A person may be said not to be in favour of the Rule of Law if he is critical of the Queen, the Commissioner of the Metropolitan Police, the Speaker of the House of Commons or Lord Denning. Statutes may be contrary to the Rule of Law [...] but the common law, it seems, can never be. Objection to the rules of international law in their application to the United Kingdom is wholly excusable on proper occasions. Defiance of regulations and directives emanating from Brussels may often be accounted as a positive virtue. If the Rule of Law means that there should be proper and adequate machinery for dealing with criminal offences and for ensuring that public authorities do not exceed their legal powers, and for insisting that official penalties may not be inflicted save on those who have broken the law, then only an outlaw could dispute its desirability. And Bracton is a thirteencentury authority in its support. But when it is extended to mean more than that, it is a fantasy invented by Liberals of the old school in the late nineteenth century and patented by the Tories to throw a protective sanctity around certain legal and political institutions and principles which they wish to preserve at any cost. Then it is become a new metaphysic, seeming to resolve the doubts of the faithful with an old dogma.

A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885; 10th edn 1959, London: Macmillan & Co.), pp. 187-95

When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. 7 H.W. Arthurs, 'Rethinking administrative law: A slightly Dicey business' (1979) 17 Osgoode Hall Law Journal 1, 4. 3 The Rule of Law | 95 We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. [...] We mean in the second place not only that [...] no man is above the law, but that [...] every man, whatever his rank or condition, is subject to the ordinary law of the realm [... that ...] every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. [...] We may say [thirdly] that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are [...] the result of judicial decisions determining the rights of private persons [...].

In relation to Dicey's second definition of the rule of law (equality before the law), Jennings flatly denied that there was any equality between the rights and duties of an official

and that of an ordinary person. Dicey surely realized this, but had chosen to ignore the public law position of officials, for example the duty of local authorities to provide education to children and the powers of the tax inspectors to demand information. Dicey was only writing about the position in tort law—not public law. While it was true that generally officials could be sued personally by an aggrieved citizen for a tortious act or omission in the course of their duty, Jennings' withering retort was that 'this is a small point upon which to base a doctrine called by the magnificent name of "rule of law", particularly when it is generally used in a very different sense'.12 Lastly, Jennings questioned Dicey's proposition that the rule of law meant that 'the constitution is the result of the ordinary law of the land' rather than a constitutional code. Jennings could not see Dicey's point.

Coming from the pen of one of our greatest and most humane judges, it is not surprising that this checklist quickly became influential. The European Commissio

n on Democracy through Law ('the Venice Commission') adopted it in its 2011 report on the rule of law.2 The Bingham Centre for the Rule of Law, based in London and named after Lord Bingham, is an organization of lawyers, academics, and judges 'devoted to identifying rule of law issues in national, regional and international systems and seeking to analyse, establish and promote the rule of law's fundamental qualities'.3 Against this background, it may seem tempting simply to agree that Lord Bingham's criteria form a definitive statement of what the rule of law is in the twenty-first century. To do so would, however, ignore several important disagreements.

Sir Ivor Jennings, The Law and the Constitution, 5th edn (1958, London: University

of London Press), p. 314 I do not understand how it is correct to say that the rules are the consequence of the rights of individuals and not their source. The powers of the Crown and of other administrative authorities are limited by the rights of individuals; or the rights of individuals are limited by the powers of the administration. Both statements are correct; and both powers and rights come from the law—from the rules.

P. Craig, 'The Rule of Law', A paper for the House of Lords Constitution Committee, Sixth Report, Session 2006-07 (HL 151), 'Relations between the Executive, the Judiciary and Parliament',

p. 101 The rationale for restricting the rule of law in this manner is as follows. We may all agree that laws should be just, that their content should be morally sound and that rights should be protected within society. The problem is that if the rule of law is taken to encompass the necessity for 'good laws' in this sense then the concept ceases to have an independent function. There is a wealth of literature devoted to the discussion of the meaning of a just society, the nature of the rights which should subsist therein, and the appropriate boundaries of governmental action. Political theory has tackled questions such as these from time immemorial. To bring these issues within the rubric of the rule of law would therefore rob this concept of an independent function. Laws would be condemned or upheld as being in conformity with, or contrary to, the rule of law when the condemnation or praise would simply be reflective of attachment to a particular conception of rights, democracy or the just society. The message is therefore that if you wish to argue about the justness of society do so by all means. If you wish to defend a particular type of individual right then present your argument. Draw upon the wealth of literature which addresses these matters directly. It is however on this view not necessary or desirable to cloak the conclusion in the mantle of the rule of law, since this will merely reflect the conclusion which has already been arrived at through reliance on a particular theory of rights or the just society.