The rule of Law

Why do we need the Law?

The law is important for a society for it serves as a norm of conduct for citizens. It was also made to provide for proper guidelines and order upon the behaviour for all citizens and to sustain the equity on the three branches of the government. It keeps the society running. Without law there would be chaos and it would be survival of the fittest and everyman for himself. Not an ideal lifestyle for most part.

What are Laws?

The existence of laws is fundamental to a society governed by the rule of law. However, the creation and enforcement of laws does not, of itself, constitute or enable a society to be governed by the rule of law.

The important distinction must be drawn between a society governed by laws and a society governed by the rule of law. A society governed by laws, without consideration and embrace of the rule of law as a guiding and underlying principle, has the potential to be a tyrannical or “Police” state.

There are a myriad of definitions of “law” and it is, perhaps, instructive to consider a number of those definitions and statements made regarding them before turning to consider how laws might be (or have been) used to achieve justice or oppression and thus why the “rule of law” is fundamentally important in achieving the former rather than latter outcome.

The Organisation of American States provides this useful definition:

The law is a set of rules for society, designed to protect basic rights and freedoms, and to treat everyone fairly

The Legal Services Commission of South Australia provides the following useful and interesting discussion (rather than definition) of laws:

A law is the product of the social conditions at the time it is made. The law is not static. Just as relationships between people or between people and the Government are not fixed permanently, so the law changes by responding to the current social and political values of the dominant culture. As societies become more complex so too does the law. It governs our private relationships through contract, tort, property, succession, trust and family law as well as our public relationships with the State through criminal, constitutional and administrative law

The Canadian Department of Justice provides the following insight:

Rules made by government are called "laws." Laws are meant to control or change our behaviour and, unlike rules of morality, they are enforced by the courts… Ever since people began to live together in society laws have been necessary to hold that society together… Even in a well-ordered society, people have disagreements, and conflicts arise; the law provides a way to resolve disputes peacefully… Laws help to ensure a safe and peaceful society in which people's rights are respected

Whilst the above examples are illustrative they make clear that laws are generally accepted as addressing fundamental purposes including:

-  Universality

- Consistency

-  Regulation

-  Changeability and responsiveness

- Protective of individual and collective rights

If one were to turn to utilitarian jurisprudential philosophers such as Bentham, Milne and Paine it might be opined that a “good” law:

-  Protects individual freedom;

- Ensures collective security (including through the individual’s responsibility to not infringe that security through the prudent exercise of his/her freedom by reference to the freedom of others); and,

- Acknowledges and protects fundamental rights.

Yet clearly there are examples where laws have not met these purposes and yet have been laws enacted by elected governments. Readily recognised examples might include:

- “Jim Crow” segregation laws in various of the United States of America (whereby segregation was legally imposed or protected by “separate but equal” laws) and enduring until the 1960

- Similar Australian laws establishing the various officers of the Protector of Aborigines

- Apartheid and Pass laws in pre 1994 South Africa

- Russia and Zimbabwe’s recent anti gay laws

- The suggested “Illegality” of recent Crimean succession motions.

The importance of laws being uniform in their application is generally accepted as fundamental to their doing justice. However, there are clear and obvious examples when this has not been so even when suggested to be so or where on the laws’ face it has appeared to be so. On such example is the 1776 American Declaration of Independence which contains the prosaic opening passage:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are Life, Liberty and the pursuit of Happiness

Whilst few would cavil with these words it must be remembered that at the time such “freedom” was declared as universal that:

- Women were not legally recognised as equal nor permitted to vote.

- The First Nations Peoples of the then United States were not treated with such unanimity of equality;

- Slavery flourished (and including a number of the drafters and signatories of the Declaration owning slaves). 

The injustice of such anomalies (indeed hypocrisies) has been the subject of substantial and significant comment by judicial officers and political and Civil Rights leaders including:

Our constitution is color-blind, and neither knows nor tolerates classes among citizens….The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.  Justice Harlan

Freedom and justice cannot be parceled out in pieces to suit political convenience. I don't believe you can stand for freedom for one group of people and deny it to others. Coretta Scott King

Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. Martin Luther King Jnr

Laws are the means by which political will is given expression. Thus if the political will is not just then nor will be the expression of that will. In this sense the absence of justice constitutes injustice and injustice oppresses. Similarly, a law passed for an unjust purpose will oppress.

Martin Luther King Jnr had sagely opined that:

Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress

What is the Rule of Law?

Robin Speed, President of the Rule of Law Institute of Australia offers the following as regards the rule of law:

The rule of law is an overarching principle which ensures that Australians are governed by laws which their elected representatives make and which reflect the rule of law. It requires that the laws are administered justly and fairly.

The website of the Federal Attorney General’s office states:

The rule of law underpins the way Australian society is governed

The website goes on to indicate that:

We uphold the rule of law through our daily work to ensure:

- Laws are clear, predictable and accessible

- Laws are publicly made and the community is able to participate in the law-making process

- Laws are publicly adjudicated in courts that are independent from the executive arm of government

- Dispute settlement is fair and efficient where parties cannot resolve disputes themselves

These statements whilst accurate and appropriate assume a shared understanding of what is meant by “the rule of law” and its importance to the community. The difficulties with such definition are inherent in the following by Geoffrey de Q. Walker in The rule of law: foundation of constitutional democracy, (1st Ed., 1988):

There is no single agreed definition of the rule of law. However, there is a basic core definition that has near universal acceptance. As Emeritus Professor Geoffrey Walker, has written in his defining work on the rule of law in Australia “most of the content of the rule of law can be summed up in two points: (1) that the people (including, one should add, the government) should be ruled by the law and obey it and (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it”

With regards to disobedience of the law the 1946 Nuremberg War Trials (The International Military Tribunal for Germany) had concluded:

…individuals have international duties, which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State, if the State in authorising action moves outside its competence under international law.

That a soldier was ordered to kill or torture in violation of the international law of war has never been recognised as a defence to such acts of brutality, though…the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.

Such dicta would, in the case of unjust laws, such as might authorise torture or extra judicial killing, be argued to apply.

Martin Luther King Jnr had expressed the domestic and generally Nuremberg position succinctly as:

One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws

And Henry Thoreau had described the role of the citizen as regards unjust laws:

If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law

The World Justice Project (WJP) provides a more expansive definition of the Rule of Law in the following terms:

The rule of law is a system of rules and rights that enables fair and functioning societies...in which the following four universal principles are upheld:

- The government and its officials and agents as well as individuals and private entities are accountable under the law;

- The laws are clear, publicised, stable and just; are applied evenly; and protect fundamental rights, including the security of persons and property;

- The process by which laws are enacted, administered and enforceable is accessible, fair and efficient;

- Justice is delivered by competent, ethical and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.

These 4 principles are then further developed by 9 factors by which the extent to which the rule of law is experienced being:

- Constraints on government powers (meaning that legislators are held accountable)

-  Absence of corruption (such as use of public power for private gain)

- Open Government (including transparency of decision making, freedom to information and free and open reporting)

- Fundamental Rights (such rights being clearly identified, acknowledged, protected, universally applied and free from infringement by legislation or application of decisions)

- Order and Security (ensuring that individuals and society collectively are protected from violence so that citizens feel secure)

- Regulatory enforcement (ensuring that laws are openly, publically and consistently applied and enforced)

- Civil Justice (the availability of and free, unfettered and equal access to a means of resolution of civil disputes between citizens)

- Criminal Justice (a means of redressing grievances arising from alleged offences against society)

- Informal Justice (the acknowledgement of traditional, tribal, religious and community based systems of law and dispute resolution).

Bibliography:

The Rule of Law - Law as an Instrument of Justice and a Tool of Oppression by Judge Joe Harman at the Legal Studies Teachers Conference

What Is The Law? Mutual Assistance in Criminal Matters and extradition

Utilitarian jurisprudence suggesting that laws are intended to and should achieve the greatest happiness for the greatest number. See 347 U.S. 483 (1954)

American First Nations People are referred to in the Declaration as “the merciless Indian Savages”

See Thomas Day’s "Fragment of an original letter on the Slavery of the Negroes, written in the year 1776" including “If there be an object truly ridiculous in nature, it is an American patriot, signing resolutions of independency with the one hand, and with the other brandishing a whip over his affrighted slaves."

Plessy v. Ferguson 1896

Letter from the Birmingham Jail August 1963

Civil Disobedience and Other Essays

The new Jim Crow by Michelle Alexander