Gary Judd KC: The rule of law exists to protect people

It imposes obligations on government not on citizens

The Law Association’s LawNews today published my article under the title, What is the rule of law? I have chosen a different title here because I wish to emphasise that the article is not an article for lawyers but for everyone. Here’s a link to the Law Association’s publication. I have added the footnotes which LawNews did not include; they probably are for lawyers, mostly!

There is a strange confusion abroad that the rule of law requires citizens to obey the law.

The true position is that the rule of law does not require ordinary citizens to do anything. The rule of law exists to protect them from the actions of those who would subject them to the rule of women and men.

Certainly, citizens must obey the law.

They must obey the law not because of the rule of law but because the law itself commands obedience, imposes sanctions for disobedience and defines the consequences for actions in accordance with, or not in accordance with, the law’s requirements.

Coercion is usually unnecessary because legal requirements normally enjoy wide community support.

Lack of wide community support may lead to a breakdown of social order and in extreme cases to revolutionary conditions. An example is the rebellion of the American settlers against British rule, the reasons for which were so eloquently explained in the 1776 Declaration of Independence.

Ordinary citizens are not subject to the rule of law. They are its beneficiaries.

The rule of law protects ordinary citizens by requiring those who rule to do so in accordance with law (so that the rule is by law, not by men or women) and by subjecting those who make, administer and enforce the law to strictures in the way they go about it.

The rule of law has three components.

First, it recognises political equality, which requires that no one has more power and jurisdiction than another, by requiring those who exercise power to be subjected to the same laws as everyone else and by strictly constraining the limits of the power they may exercise to that necessary to facilitate the operation and execution of the law.

As Aristotle, the earliest on record to express the concept, wrote:

And the rule of the law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law. For magistrates there must be – this is admitted; but then men say that to give authority to any one man when all are equal is unjust. Nay, there may indeed be cases which the law seems unable to determine, but in such cases can a man? Nay, it will be replied, the law trains officers for this express purpose, and appoints them to determine matters which are left undecided by it, to the best of their judgment.1

The requirements

Secondly, the rule of law requires the laws themselves to be stable, publicly accessible, clear, not retrospective and applied by independent judges in accordance with fair procedures.

They must be prospective, capable of being obeyed, promulgated, clear, coherent (not contradictory), stable (not changed arbitrarily) and general (so that particular decisions are framed by general rules).2

The law should be certain, as much as possible, so that it can be easily enforced and so people can know where they stand. We expect that of Parliament when it frames statute law, and of judges when they expound the common law.

We expect it in our relations with authority and in our relations with each other.

If the law is certain, citizens know what to expect.3

Thirdly, the law must have a certain minimum content, a content capable of securing freedom and political equality. That means there ought to be laws aimed at securing freedom from the use of physical force, injury and death.

The law must outlaw coercion except in accordance with legal authority. Coercion in accordance with legal authority is required to protect the law-abiding from those who are not.

The law must outlaw arbitrary detention and it must ensure recourse is available to an independent tribunal charged with the application of the laws.4

Essential framework

These three components are both necessary and sufficient.

They are necessary as the essential framework for social existence and civil society, by eliminating the rule of men and women insofar as practicable and by aiming to eliminate physical force as a means of obtaining ends.

In a sense, the third component circles back and embraces the first because Aristotle’s rationale for preferring the rule of law to the rule of men is “that to give authority to any one man when all are equal is unjust,” so there must be “magistrates”, but they are only “guardians and ministers of the law.”

By the same token, the second component aids the subordination of the rule of men to the rule of law by minimising the permissible areas of discretion.

The three components are sufficient because they provide and protect the civil framework within which choices can be made to establish and protect other community values through political institutions and processes that cater for effective community participation in the making of further laws enjoying community approval.

Protection against government

The rule of law seeks to protect citizens against the actions of the three branches of government: the executive, the legislative and the judicial.

Through judicial review, the courts can prevent the executive from stepping outside the powers conferred on it by the legislative (which is an example of subordinating the rule of men and women to the rule of law).

But as Parliament is sovereign, courts cannot prevent the legislative from legislating inconsistently with the rule of law.

Likewise, although it may be possible to prevent lower courts from acting inconsistently with the rule of law by appeal to a higher court, there is no legal way of calling the Supreme Court to account for failure to observe the requirements of the rule of law.

The only way of doing so is through legislative intervention.

No right of appeal

The rule of law is a moral imperative. It states how the branches of government ought to behave.

In a democracy, the people can act against legislative and executive non-compliance with the rule of law by electoral defeat of those responsible for departure from it.

There is no direct action the people can take in respect of judicial departure from the requirements of the rule of law, where no right of appeal exists.

Hence, it is salutary to note the words of US Supreme Court Justice Robert Jackson in Brown v Allen (1953):

Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done.

There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.

“We are not final because we are infallible, but we are infallible only because we are final,” are words which highlight the extraordinarily high responsibility borne by judges of final appellate courts always to remember that their infallibility is only an artifact of institutional necessity.

That is one of the reasons the common law method requires adherence to precedent with only such gradual changes as may be needed when a new set of circumstances cannot be brought within existing legal principle.

Former Australian Solicitor-General Stephen Gageler describes the decision-making process:

The essential elements of the decision-making process of a court are well understood and can be simply stated. The court finds the facts. The court ascertains the law. The court applies the law to the facts to decide the case. The distinction between finding the facts and ascertaining the law corresponds to the distinction in a common law court between the traditional roles of jury and judge. The court – traditionally the jury – finds the facts on the basis of evidence. The court – always the judge – ascertains the law with the benefit of argument. Ascertaining the law is a process of induction from one, or a combination, of two sources: the constitutional or statutory text and the previously decided cases.5

Certainty and consistency

Another reason for the common law method is the rule of law’s requirement for as much certainty as possible, and for consistency.

Sweeping departures from existing law and broad adoptions of new legal content reflect perceived infallibility and are inconsistent with the rule of law.

Ascertaining the law is a reasoning process which involves inferring the law or principle applicable to the case under consideration from legislation where applicable and from the material to be found in decided cases.

The judge’s legitimate sources of law are written legislation and written decisions, available to all who wish to consult them.

As can be seen from its description, the rule of law does not require ordinary citizens to do anything.

It imposes its obligations on the three branches of government.

For example, when legislation does not clearly state what citizens must and must not do but instead vests wide discretions in ministers or bureaucrats, the legislative branch is failing in its obligation to act consistently with the rule of law.

Judges who purport to adopt as law that which has as its source in the judges’ personal predilections of what is right or wrong are substituting the rule of women or men for the rule of law.

A decision based on law which has such a source will nevertheless have the force of law requiring obedience from those affected.

Obedience is required not because the parties are subject to the rule of law, but because they are subject to the law and must act accordingly.

They must do so even though the court has failed to act consistently with the rule of law in the decision-making process.

Unless able to obtain legislative redress, the most they can do is to condemn the failure to act consistently with the rule of law and to appeal to the court’s lack of conscientiousness in its regard for moral obligation.

For their part, judges ought to remember that when they undermine the rule of law by departure from the common law method of reasoning from decided cases in favour of adopting that to which they are personally predisposed, the substitution of the rule of women and men for the rule of law also diminishes the institutional standing of the judicial branch and further weakens the rule of law.

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

2 Richard Ekins, editor and contributor to Modern Challenges to the Rule of Law (LexisNexis, 2011), at p 166.

3 “Should the law be certain?,” Lord Mance, The Oxford Shrieval lecture given in the University Church of St Mary The Virgin, Oxford on 11th October 2011, paras 1,7, 46 and 47.

4 The formulation of this component closely resembles the formulation by Lord Jonathan Sumption in “How the rule of law intersects with human rights,” Law Association, 3 Nov 2023. He identified the question as, “what rights are truly fundamental to the subsistence of civil society so that they should be placed beyond the reach of political choice.” He answered his question later:

Not all human rights are fundamental to the subsistence of civil society. We have to distinguish between those rights which are truly fundamental and indispensable and those which are just a good idea….

I would identify two categories of fundamental rights. First of all there are rights without which life would be nothing more than a crude contest in the deployment of force. So, freedom from coercion without established legal authority, freedom from arbitrary detention, from physical violence, from injury or death, recourse to an impartial and independent tribunal for the purpose of enforcing those rights.

Now, those are rights which are clearly implicit in the rule of law. They are quite close to Professor Raz’s thin definition but I think there is a better way of explaining them and that is that they are rights without which social existence and civil society are not possible. If life is simply a contest in the deployment of force, then there is no society. The basic bonds of human solidarity which make a society do not exist in those conditions.

Now, there is a second category of rights which I would also regard as fundamental and that comprises rights without which our society can exist but cannot function as a democracy. I don’t, as it happens, believe that democracy is a necessary part of the rule of law. Britain enjoyed the rule of law long before she was even a limited democracy and the same is true of most western countries. They had orderly systems of law before they ever had universal suffrage.

But I add this second category for this reason: the distinction between rights which are fundamental and those which are merely optional is only relevant in a democracy. That is because the reason why we make this distinction at all is that we believe that some rights should be protected against encroachments by populist politicians and by other critics who may be able to garner majority support among the electorate.

5 “Fact and Law,” (2008-9) Newc LR, Vol 11, 1. In the remainder of the article Gageler considers the role of “legislative fact” in the decision making process. Legislative facts are not facts in issue or those relevant to a fact in issue (those facts the proof of which is governed in New Zealand by the Evidence Act 2006), but facts which help the court determine the content of law and policy and to exercise its discretion or judgment in determining what course of action to take. See Cross on Evidence (NZ), EVA128.6.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.