Rule of Law

Rule of Law

A fundamental constitutional principle requiring all individuals and institutions, including government, to be accountable under the law.

Purpose of the Rule of Law

Seeks to reconcile organized state power with individual liberty, providing a framework for legitimate government authority while protecting personal freedom.

Social Contract Theory

The theory that individuals consent, either explicitly or implicitly, to surrender some of their freedoms to authority in exchange for the protection of their remaining rights.

Thomas Hobbes' View

In the state of nature, life is insecure, leading individuals to surrender liberty and accept absolute sovereign authority in exchange for peace and security.

John Locke's View

Government is a fiduciary of the people; individuals retain autonomy and freedom, and state coercion is justified only when necessary.

Legal Positivism

A theory stating that law is valid because it is created by recognized legal authorities and its validity is independent of moral considerations.

Key requirements of legal positivism

Generality

Certainty

Stability

Accessibility

Generality

A requirement of law that ensures laws apply generally rather than arbitrarily.

Certainty

A requirement of law that ensures laws are predictable.

Stability

A requirement of law that ensures laws remain reasonably constant.

Accessibility

A requirement of law that ensures laws must be publicly available and understandable.

Natural Law

The theory that law is inherently connected to morality and justice, where unjust laws may lack true legal legitimacy.

Proposition 1

The Rule of Law is a fundamental requirement of civil society, necessitating legal order and predictability.

Proposition 2

The Rule of Law is a substantive concept that includes values like habeas corpus, property security, and non-discrimination.

Criticism by Joseph Raz

Warned against incorporating social justice into the Rule of Law as it strips it of independent meaning.

Raz criticism

Warned against incorporating social justice in the law

Proposition 3

The Rule of Law is a Normative Concept Guiding Public Action

Dworkin criticism

Rule of law is aspirational

Cooke criticism

Rule of law implies representative democracy, independent courts, and respect to Treaty principles

Critique by Lord Bingham

Described the Rule of Law as inherently ambiguous.

Key counterargument support to the rule of law being normative

Rights instruments show that laws operate according to normative values e.g. NZBORA rights

Proposition 4

The rule of law is a supranational concept (transcends borders

Proposition 5

The Rule of Law serves as the foundational norm of Western constitutional systems, acting as the ultimate principle of legality.

Corner House Research case critique

Demonstrated that public decision-making includes judgement, choice, and discretion

Morse v Police critique

Illustrates the indeterminate nature of legal concepts and reasoning

Positivist critique

Moral content makes the rule of law incapable of precise definition

Rule of law in NZ legislation

Frequently appears without definition, leaving to courts to decide

Anufrijeva case

Demonstrates rule of law shapes public policy

Fox Hunting case

Hope J stated, "The rule of law is the ultimate controlling factor on which our constitution is based."

Benett v Hawkesbury

Bridge J stated, "There is no principle more basic than the maintenance of the rule of law."

Relationship Between Rule of Law and Te Tiriti

Both principles overlap in protecting against arbitrary government action, ensuring accountability, and recognizing substantive rights.