Rule of law

international human rights movement & rise of constitutionalism

catalyst = WWII atrocities, holocaust - after 1945 creation of new international instruments —> United Nations 1945, United declarations of human rights 1948 —> effect: injected substantive content into ROL, sparked “rise of constitutionalism” Lord of Cook Thorndon, established a supranational dialogue among liberal democracies, encouraged rights adjudication across jurisdictions

Legal positivist theory

it prescribes the formal requirements of legal norms, law must be certain, general, stable, accessible and prospective

Natural law theory

ROL operates the principle of institutional morality, guiding light above enacted law. ROL = procedural + substantive

What did Bennet say about the Rule of Law?

“There is no principle more basic to any proper system of law than the maintenance of the rule of law itself” — it is “indispensable to civilised society.”

What did Borrowdale (2020) affirm about New Zealand?

It affirmed New Zealand’s commitment to being a state governed by the Rule of Law, even in times of crisis.

Why is the Rule of Law hard to define?

Despite its significance, it is difficult to define precisely — but discussions usually begin with A.V. Dicey’s three conceptions of the Rule of Law.

What is Dicey’s First Principle of the Rule of Law?

The absolute supremacy or predominance of regular law — government is bound by law.

What does this principle exclude?

The influence of arbitrariness, prerogative powers, and wide discretionary authority

What case supports this idea?

Entick v Carrington — “If it is law, it will be found in our books. If it is not to be found there, it is not law.”

What does this imply about discretion?

That discretion is contrary to the Rule of Law.

Why are Dicey’s standards seen as outdated?

He wrote in a time of a smaller state; modern government functions (like healthcare and education) require discretionary power.

How are discretionary powers now controlled?

Through checks and balances such as:

• Internal Statutory Controls (clarity on how to use discretion)

• Judicial Review (Peters: ensures public bodies comply with the law)

• External Statutes (NZBORA, HRA, OIA, Ombudsman Act)

• Political accountability

What is the modern balance between discretion and law?

Powers of officials must be authorised by law, but law may allow discretion. Judicial review is a “necessary corollary of the Rule of Law” to prevent abuse.

What is Dicey’s Second Principle?

The equal application of the ordinary law to all persons and entities, administered by the ordinary courts.

What is the core idea?

No one is above the law.

Why is Dicey’s equality principle criticised as a fiction?

Because not all people are subject to the same law — e.g. diplomats, infants vs adults, landlords vs tenants, welfare recipients.

What historical view influenced Dicey’s thinking?

He saw France’s administrative justice system as biased, preferring the UK’s ordinary courts

How is this principle now understood?

Politicians and officials are bound by the law as administered by the ordinary courts, though different laws may apply to them.

What is Dicey’s Third Principle?

Constitutional rights are secured through judicial precedent and ordinary legal processes, not a written constitution.

What does this imply about the common law?

That common law rights and liberties are superior to codified constitutions in protecting freedoms.

Why is Dicey’s third principle criticised today?

Most common law jurisdictions have codified constitutions or Bills of Rights — this doesn’t make them less committed to the Rule of Law.

How do modern scholars respond to Dicey?

Even though common law freedoms must yield to Parliament, they “embody essential values which warrant preservation, even against legislative supremacy.”

What are Dicey’s three meanings best seen as?

: More as political statements than reflections of constitutional realities.

What was the political purpose behind Dicey’s constitutionalism?

To oppose welfare collectivism, defending individualism and free trade.

What functions of the state did Dicey see as legitimate?

Defence, foreign relations, and internal order.

How have conceptions of justice evolved since Dicey?

They’ve broadened beyond liberty and limited government.

Why is Dicey still relevant today?

His meanings remain the starting point of any discussion on the Rule of Law.

What marks the move away from Dicey?

“Sharp disagreements over the essential nature of law,” leading to new conceptions.

What are the two main conceptions of the Rule of Law?

The legal positivist (formalist) and naturalist (substantive) approaches.

What does formalism assert about law and morality?

There is no connection between them.

What is meant by a “minimalist conception” of law?

Identifying the formal requirements of law while excluding moral content.

What must law be under this view?

General, prospective, accessible, stable, and certain.

What are the key implications?

• Like cases decided alike.

• Law applies equally to all.

• Decision-makers follow natural justice procedures.

How does HLA Hart describe justice under this approach?

“Justice in the administration of the law, not justice in the law.”

What problem underlies positivism?

It assumes morality causes uncertainty, which is undesirable.

What is the logical consequence of that assumption?

Morally bad laws (e.g., slavery) could still satisfy the Rule of Law if procedures are followed.

Which scholar accepted this outcome?

Joseph Raz – said legalising slavery wouldn’t violate the Rule of Law if formal requirements were met.

What’s the overall criticism?

It has conceptual merit but is lacking in moral and practical depth.

What is the main critique of formalism that leads to the substantive view?

When law lacks moral content, it cannot distinguish good from evil.

What did Fuller argue?

The internal morality of law is essential — law and morality are intertwined.

How does this view connect to democracy?

Law reflects society’s values and the will of elected representatives.

How did international human rights reinforce this?

The movement strengthened Fuller’s view that the Rule of Law is inherently moral (see Steyn).

What did Lord Steyn say about this?

The Rule of Law “utterly rejects the instrumentalist conception of law that enables oppression.”

How does this contrast with formalism?

Substantivism sees law as dynamic, moral, and socially responsive, while formalism is static and procedural.

What happens when morality is removed from the Rule of Law?

The concept becomes “emaciated with little credible function.

What’s the modern consensus?

Formalism has intellectual value, but its principles don’t reflect the realities of the 21st century.