The Rule of Law: Normative Foundations, Judicial Application, and Supranational Dialogue
Proposition Three: The Rule of Law as a Normative Concept for the Guidance of Public Action
The Natural Law Perspective: This proposition embraces the natural lawyers' conception, which views the rule of law as a moral and normative framework intended to guide public action.
The Legal Positivist Critique: Legal positivists severely criticize this conception. They argue that identifying the rule of law as a normative concept injects the legal system with "intolerable uncertainty" and "untoward unacceptable uncertainty" by moving away from objective, black-letter rules.
Rebuttal to Positivism:
Claims to absolute or a priori certainty in law are misplaced and misconceive both the concept of the rule of law and the nature of law itself.
Neither the law nor the rule of law is ever absolutely certain.
Superior courts function to allay legal uncertainties by handing down rulings and providing clarity where it was previously lacking.
The Difficulty of Definition and the Role of the Courts
Lord Bingham’s Observations: Lord Bingham accepted that the rule of law is not absolutely certain, reflecting on the Constitutional Reform Act of 2005.
Section 1 of the Constitutional Reform Act of 2005: Mentions that the Act does not adversely affect the existing principle of the rule of law but provides no statutory definition.
Bingham noted that the concept is "inherently ambiguous" and rejected the idea that it is so self-evident as to need no definition.
Definitional Delegation: Bingham argued that Parliament should not define the rule of law; instead, the task belongs to the courts. He stated it is too difficult for Parliament to "formulate a general definition of universal application."
Statutory Precedents (New Zealand):
The Lawyers and Conveyances Act 2006: References the rule of law but does not define it.
The Senior Courts Act 2016: References the rule of law but does not define it.
Contextualization: Definitional boundaries are best set by courts through the application of the concept to actual factual situations, giving it "finite meaning" against a specific background.
Legal Certainty and Subjectivity: Speed Limits vs. Offensive Behavior
The 50 km/h Example: A speed limit of is a statutory offense that is absolutely certain in meaning and application. Technology allows for the exact calibration of vehicle speed, leaving no room for dispute.
Section 4 Subsection 1A of the Summary Offences Act 1981:
This section reenacts the offense of "offensive and disorderly behaviour."
Unlike speed limits, "offensive behavior" is inherently subjective, described as being "like beauty… in the eye of the beholder."
Anecdote of Example: A group of students in a flat on Maidstone Road held a party at am on a Sunday. A neighbor, viewing the Sabbath as a day of worship, found the behavior offensive, illustrating how the same act is perceived differently based on subjective viewpoints.
Case Study: Morse and the Police (2012)
Reference: 2012, 2 New Zealand Law Reports at page 1.
Facts: Ms. Morse, a professional protester, set fire to a New Zealand flag, beat drums, and blew horns during an Anzac Day ceremony at the Cenotaph near Parliament Buildings (on Victoria University Law faculty grounds) to attract attention to her protest.
Legal History: She was convicted in the High Court and Court of Appeal for offensive behavior.
Supreme Court Ruling: The Supreme Court set aside the conviction, acknowledging the offense is "inherently subjectively defined" and "inherently uncertain."
Outcome: The court sought to provide an objective foundation by redefining it as a public order offense. They "read down" the statute by inserting a requirement not found in the text: the behavior must "conduce towards public disorder" or cause others present to potentially breach public order. In the absence of this element, the offense (under Section 4-1A) is not made out.
The Rule of Law and Judicial Context: Anufuiva and Corner House Research
The "Default Reaction to Injustice": In the courts, the rule of law acts as a default reaction to injustice, particularly when no other applicable principle of law is directly in point.
Indeterminacy of Norms: Constitutional norms often remain "partially indeterminate and partially obscured" until a specific situation of injustice forces courts to materialize fundamental principles (liberty, freedom) into tangible form.
Case One: Anupuaiva (Anuphoeaver / Anufuiva) (2003)
Reference: 2003 UK House of Lords decision.
Background: Ms. Anufuiva applied for refugee status in the UK and was receiving income support. Officials stopped her payments without informing her of the decision or explaining why.
Judgment by Lord Stain (Steyn): Lord Steyn used a "rhetorical legal method," appealing to the rule of law as a "touchstone for justice."
Key Principle: Even in "unprepossessing cases" involving "undeserving litigants," fundamental principles must be upheld. The court ruled that an "uncommunicated decision was in law no decision at all."
Result: The rule of law required the applicant to be able to challenge the decision; since she wasn't informed, she couldn't challenge it. She received backdated income support for the period between the silent decision and formal notice.
Case Two: Corner House Research (2008)
The Divisional Court (First Instance): Concerned allegations that Saudi Arabian officials accepted bribes/kickbacks from UK arms manufacturers. The Director of the Serious Fraud Office (SFO) pulled the investigation after receiving covert threats from the Saudis.
The Divisional Court held that the Director had "abdicated his statutory function" by succumbing to pressure. They stated: "The surrender of a public authority to threat or pressure undermines the rule of law."
The House of Lords (Appeal): Overturned the Divisional Court’s decision using a "formalist legal method."
The Lords asked: "Was the director's decision one he was lawfully entitled to make?" (i.e., within the scope of his statutory powers).
They answered yes, upholding the decision to discontinue.
Analysis: This case highlights how different outcomes depend on the questions asked (Rule of law breach vs. Lawful entitlement). It reveals the elements of Judgment, Choice, and Discretion endemic to public law, which contradicts positivist claims of legal certainty.
Proposition Four: The Rule of Law as a Supranational Concept
Definition: The rule of law transcends national borders and is upheld by all modern Western democracies, whether civil law or common law.
International Human Rights Movement:
Development catalyzed by post-WWII atrocities (1945 Establishment of the UN).
1948 Universal Declaration of Human Rights: Proclaimed by the UN, stating in its preamble that "human rights should be protected by the rule of law."
1950 European Convention on Human Rights: Affirmed the same catalogue of rights and freedoms.
Legal Incorporation:
UK Human Rights Act 1998: Made the 1950 Convention rights justiciable in national courts.
New Zealand Bill of Rights Act: Premised on the ICCPR (International Convention on Political and Civil Rights) adopted by the UN in 1966 (enforceable from 1976).
Canadian Charter of Rights and Freedoms: Also based on the ICCPR.
Synthesis: The natural law conception is more sympathetic to the modern understanding because legal positivism's failure to link the rule of law with rights protection is considered "anathema in the modern age."
Transnational Rights Dialogue and Technology
Vertical to Horizontal Movement: Rights discourse descended vertically from international orders into national bills of rights (Hong Kong, Canada, New Zealand, UK, Ireland, South Africa) and is now traded "horizontally" between national legal systems.
Bagent (Baigent’s Case) (1994):
The Court of Appeal held that a person may seek "public law compensation" (Baigent damages) against the state for breaches of the Bill of Rights if no other remedy exists.
Lord Cook (Thornton): "Ransacked" international jurisdictions, discussing human rights cases from eight separate jurisdictions to justify the development of these damages.
Impact of Global Technology:
Modern computer and internet technologies facilitate this dialogue with "unprecedented speed and efficiency."
In the past, law reports took 8-9 months to reach New Zealand by ship; today, decisions are available on court websites the next day.
This has promoted "comparative rights jurisprudence" and the "cross-pollination" of legal systems.
Proposition Five: The Rule of Law as the Foundational Norm of Western Political Systems
The Ultimate Principle of Legality: The rule of law is poised to challenge, or has already challenged, Parliamentary Sovereignty as the ultimate principle of Westminster legality.
Lord Steyn’s Extrajudicial Writings:
Steyn extemporized and visualized scenarios where governments might "tamper with the fundamentals of constitutional democracy."
Example 1: Life of Parliament: If a government used its majority to pass a statute extending the life of Parliament by 5 years to avoid an election.
Example 2: Tampering with Courts: If a government used a "privative clause" to direct the courts not to entertain judicial review, thereby preventing courts from Ensuring government according to law.
Example 3: Redefining the Rule of Law: If a government attempted to fundamentally change the definition of the concept itself.
Conclusion: Lord Steyn argued that in such "exceptional cases," the rule of law may trump Parliamentary Sovereignty (or supremacy).
The Dual Ideals of the Rule of Law
The rule of law serves two mutually reinforcing ideals derived from the writings of John Locke:
The Imperative to Maintain Civil Society: The need for organized state power to protect personal property and escape the lawless "state of nature."
Vouchsafing Basic Rights: The requirement for governments to hold power in trust and reserve for the individual "as large a sphere of freedom and liberty as possible."