When we obey laws, in the sense of general abstract rules, laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free.1
I consider a basic question: ‘If the rule of law imbues a legal system with legality does it also serve the interests of justice?’
Part I will investigate the concept of legality in relation to the rule of law, and ascertain whether the rule of law is strictly an instrument of the constitution or instead forms the cornerstone of a wider theory of justice. Part II will briefly examine whether the conclusions of Part I reflect the function of the rule of law in our constitution.
‘Government by law and not men’ is a common understanding of what constitutes a liberal democracy, that is, a state in which the exercise of governmental power is constrained by law. As the Supreme Court of Canada has said, ‘democracy in any real sense of the word cannot exist without the rule of law.’2 However, this does not tell us a great deal about what the rule of law exists in. Let us assume – in the words of John Rawls – that a legal order is of public rules addressed to rational persons.3 What gives these rules legality?
Perhaps no theory of the rule of law better exemplifies this than one whose influence is such that ‘it might almost be described as a substitute for the written constitution.’4 In 1885, in his Introduction to the Study of the Law of the Constitution5 A. V. Dicey identified the universal rule of ordinary law as one of the fundamental principles of the British constitution, in contradistinction to the legislative supremacy or sovereignty of Parliament. He gave the rule of law three meanings, the first of which is key to understanding the notion of legality:
It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government…6
…no man is punishable or can be lawfully 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.7
Dicey is here asserting the ‘absolute supremacy’ of the law, and distinguishing it from what he calls ‘arbitrary’ power, or ‘wide discretionary authority’ on the part of the ‘government’. It is useful at this point to distinguish the ‘government’ or ‘executive’ from Parliament itself. The former is responsible for administration and policy; the latter embodies the legislative function. This dichotomy and its limitations will be discussed presently, however for the moment it is sufficient to note that Dicey considered Parliamentary sovereignty as much ‘a legal fact’ as the rule of law.8 Dicey was not, as Martin Loughlin observes, concerned to ‘place any limits whatever on sovereignty’.9
If the rule of law or regular law in Dicey’s words is opposed to the influence of arbitrary power, and in fact excludes arbitrariness on the part of the government, the logical inference would be that ‘arbitrary’ is here used to connote an absence of legal control. Paul P. Craig, in his evaluation of Dicey’s conception of the rule of law as essentially formal (that is, concerned with the manner in which the law is promulgated) offers a useful starting point. He argues that Dicey used the notion of arbitrariness to
…describe those norms which have been passed in the correct legal manner, but where the resulting law was impossibly vague or unclear, with the result that individuals had no idea how to plan their lives in the light of the relevant legal rule.10
In referring to ‘those norms which have been passed in the correct legal manner’, Craig is here referring to Parliamentary enactment. The task of the rule of law on this interpretation is to address the deficiencies of a particular Act, which may through its poor draftsmanship prejudice the liberty of the citizen. The rule of law, embodied by the ordinary courts, is thereby a mediator between the citizen and her government. It ensures that ‘the statutory powers claimed by public officials are properly authorized, and that the citizen can safely rely on the relevant wording in formulating his plans and deciding on the scope of his liberties under…the law.’11Arguably then, the rationality of a coercive agency is dependent upon the curtailment of any discretionary powers it may possess.
Lon L. Fuller has argued ‘that the attempt to create and maintain a system of rules may miscarry in at least eight ways’:12
This is a comprehensive list of considerations, which arguably all fall with Craig’s ambit of ‘vague and unclear’ law. It has been powerfully argued that Dicey’s construction of the rule of law as a juristic principle excludes the possibility of any of the above because it ‘embodies the liberal and individualistic bias of the common law in favour of the citizen.’13This statement invokes a conception of Dicey quite different to Craig’s strictly formalistic interpretation. Such an interpretation has at its root a positivistic approach to the understanding of the law, which Fuller, in his discussion of the foreseeable failings of a system of law was at pains to distinguish, as we shall see. Craig’s understanding of Dicey is faithful to an undiluted principle of legality, made manifest in the negative virtue ideal of the rule of law, which Joseph Raz forcefully argued for in an essay which highlights both the formidable strengths and undeniable weaknesses of the positivist ideal. 14
In this case, the ideal of legality is predicated on the principle that ‘the making of particular laws should be guided by open, stable, clear and general rules’. 15 However Raz is quick to dispel any illusions that ‘the notion of generality is of the essence to the rule of law…and that equality is related to the generality of law.’16Rather, the key aim of such rules is to impose a framework within which particular laws are enacted. This framework is germane to what Raz believes to be the one basic idea underlying the rule of law, the idea of effective guidance:
The law to be law must be capable of guiding behaviour, however inefficiently. Like other instruments, the law has a specific virtue which is morally neutral in being neutral as to the end to which the instrument is put. It is the virtue of efficiency; the virtue of the instrument as an instrument. For the law this virtue is the rule of law.17.
Raz’s formalistic conception is the consequence of a stringent separation between legal and political norms, which will be discussed in more detail below. This dichotomy is intrinsically important to the instrumental conception that Raz articulates, of the rule of law as a procedural tool within our constitution. Considerations of justice are absent on such an understanding; in its place we observe an insistence ‘that the rule of law merely enhances the ability of law to achieve its purposes whatever these are.’18. It is clear then, that Raz’s answer to the question which informs the spirit of this enquiry is an emphatic ‘No’. Is this answer the correct one however? I believe not, for two related reasons.
Few public law theorists would disagree that Raz’s conception of the rule of law is highly coherent. However it seems obvious that his elegant conception bears little relation to the rather more messy reality of the world in which we live. Returning to Fuller, it is difficult to disagree with his criticism that the jejune nature of positivism ‘recognises in the functioning of a legal system nothing that can truly be called a social dimension.’19Raz’s conception exemplifies this abiding positivist malaise, of an impractical detachment from reality. An offshoot of this is Raz’s contention that the rule of law is a negative virtue. This subsists in an understanding of the rule of law as ‘largely a mechanism for the execution of government objectives’.20
While analytical positivism invariably lacks a social dimension, is it enough to highlight this in advocating a more substantive conception of the rule of law as the correct one? Clearly not; however F. A. Hayek’s forceful riposte to the ‘science of norms’ on which positivism is predicated points us in the right direction:
…it must fail even in its immediate aim of making judicial decisions more predictable. Norms cannot be judged according to whether they fit with other norms in isolation from facts, because whether the actions which they permit are mutually compatible or not depend on facts. This is the basic insight which throughout the history of jurisprudence has constantly appeared in the form of a reference to the ‘nature of things’21
It is here that we can draw a number of important parallels between Hayek and Dicey, which I believe offer a particularly persuasive concept of the rule of law that reflects its place within our constitution. It is useful to begin by distinguishing between Hayek’s twin concepts of nomos and thesis. The former is essentially the product of spontaneous growth, and encompasses rules of just conduct, which have come to be accepted through long usage as the framework for just co-operation. As Loughlin observes, ‘it is perhaps most clearly reflected in the continuous, adaptive process of the common law.’22The latter relates to instructions that command execution of particular tasks. Such instructions are understood in this context to refer to legislation. The crucial distinction between nomos and thesis is thus drawn: ‘With the emergence of thesis the idea of law, which in the sense of nomos was viewed as a constraint on power, is transformed into an instrument for the use of power’
The concept of nomos is conducive to the concept of a functioning legal order, which is here understood as fundamental to the concept of a rule of law that recognises the ‘limitations of the powers of legislation’ and thereby implies ‘recognition of the inalienable right of the individual, inviolable rights of man.’24The importance of abstract, general rules to Hayek’s prescription is critical; in contradistinction to those of Raz’s argument they do not serve the purposes of government, ‘but rather form a basis for the successful pursuit of countless purposes of different individuals.’25 Hayek argues that such a ‘consideration is in fact the rationale of the great liberal principle of the Rule of Law.26
The ideal of abstract, general rules cannot be derived from the commands of government nor indeed Parliament. Hayek instead argued that purpose–independent rules can only evolve through custom. Hayek and Dicey therefore occupy common ground. The rule of law secures legality and justice for both men was a function of this principle. For Dicey, this is best expressed in the second and third meanings he bestowed on the rule of law. His principle of personal liability expressed in his insistence on ‘the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts’ is a reflection of the idea that rules must be abstract and general in the Hayekian sense that they apply to everyone irrespective of their situation and clarifies the importance of his third meaning:27
…with us the law of the constitution, the laws which in foreign countries naturally form part of the constitutional code, are not the source but the consequence of the rights of individuals, as defined by the courts; that, in short…the constitution if the result of the ordinary law of the land.28
Dicey’s theory of the constitution was ‘an exercise in constructing the subject in the image of the common law mind’, and evinced an effort to ‘[instil] a perception of statute law as an alien incursion’.29Hayek’s reference to the ‘nature of things’ is a reflection of the importance of custom and practice, which is a key component of the ‘common law mind’ that informed Dicey’s understanding of the conception of the rule of law. It has been powerfully argued that the power of Dicey’s doctrine consisted in
…his firm grasp of [the] fundamental idea [that] if important liberties are given protection, and standards of justice and fairness accepted and upheld, it is ultimately because – and largely to the extent that – they find expression in the common law.30
The common-law tradition is exemplified by Entick v. Carrington31, in which the judgement of Camden CJ evinced the extent of juridical respect for notions of ‘liberty’ and ‘property’. Indeed, as Ian Loveland has observed, Entick provides a classic example of the courts upholding the rule of law in the sense of the theory that Dicey later produced’.32
Dicey’s formulation resists the formalistic interpretation that Paul. P. Craig imposes. The juridical nature of his theory, grounded as it is within the tradition of the common law that Entick evokes surely transcends the ‘shackles of the Hobbesian authoritarianism he learned from J. L. Austin’. It is a formulation which reflects the synergy between legality and justice. Legality is determined by the adherence to the various precepts already discussed.
These precepts (and by extension the rule of law) are not immune from attack. On this understanding, the rule of law is not a guarantee of justice within a legal system. However, as Rawls has argued, because these precepts guarantee the regular and impartial administration of rules, they are incompatible with injustice.33 This is a more persuasive conception than the positivist prescription of the rule of law in which the two are separated.
The state in which we live today has changed radically from that which Dicey knew. State involvement in the everyday life of the citizen has increased exponentially through statute law, which invokes the notion of Parliament contracting in to administrative law and the principle of judicial review, which forms its centrepiece. It may be argued that Dicey’s fear of collectivism and his related dislike for statute law has had a lasting influence; indeed it is frequently observed that the ‘citizen-versus-state’ approach of English administrative law, which is perhaps best characterised by judicial review, is something for which Dicey must bear responsibility.34
In 1981, there were 558 applications for judicial review; by 2001 the number had risen to nearly 5000 applications. I wish to consider one particular case, M v. Home Office35, which concerned the government’s failure to obey an order of the court. M, a national of Zaire arrived in the UK seeking asylum. Kenneth Baker, then Home Secretary, refused his application and M was subsequently returned to Zaire. However M had applied for judicial review, which although refused twice, was subject to a second renewal. The judge in the case issued an order for M’s immediate return, however attempts to secure this end failed. M’s lawyers subsequently initiated proceedings for contempt of court against Mr Baker.
This case is notable because it represents the judiciary’s preference for a mandatory model of judicial review. Further, it confirmed that injunctions ‘whether final or interim’36 do lie against officials and Ministers of the Crown, and that mandatory prerogative orders would be made available. However, Lord Woolf’s judgment has been criticised for his reluctance to countenance committal of a Minister who is also serving as a Member of Parliament.
Though the Court of Appeal found Mr Baker personally guilty of contempt37, Lord Woolf talked in terms of contempt orders as lying either against the Minister ‘in his official capacity’ or against ‘the office.38 Despite this, Carol Harlow optimistically observed:39
The House of Lords has gone some way to demystify the Crown. A welcome parity between central government and other public bodies has been achieved. There is potential too for a sensible theory of public service liability based on the Diceyan principle of personal liability coupled, as it never could have been in Dicey’s day, with vicarious liability on the part of the department.
The importance of abstract, general rules to a connection between legality and justice is established. Such rules must not only ‘reflect people’s expectations about the sort of conduct which is generally appropriate in different circumstances’, they must apply equally to everyone in the same situation.40 Accordingly, justice is no more subjective a notion than legality. They are co-related, in that the sabotage of one implies an attack on the other. The applicability of such a conception to the constitution today is by no means straightforward. Nonetheless recent case law shows that the judiciary (that cornerstone of Dicey’s conception of the rule of law) intends to reconcile the two:41
The core of the existing principle is, I suggest, 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. I doubt if anyone would suggest that this statement, even if accurate as one of general principle, could be applied without exception or qualification…I think that this formulation, of course owing much to Dicey, expresses the fundamental truth propounded by John Locke in 1690 that “Where-ever law ends, tyranny begins”42