W11, L1

Proposition 3: The Rule of Law as a Normative Concept for the Guidance of Public Action

• The third proposition posits that the rule of law serves as a normative concept designed to guide public action.
• This perspective is rooted in the natural lawyers’ conception of the rule of law.
• Legal positivists offer a severe critique of this proposition, arguing that treating the rule of law as a normative concept for guiding public action injects "intolerable uncertainty" into the legal system.
• Positivists claim that giving the rule of law substantive meaning (making it normative) creates untoward and unacceptable uncertainty.
• The counter-argument to the positivist critique is that claims to absolute or a priori certainty are misplaced and misconceive both the concept of the rule of law and the nature of law itself.
• It is argued that neither the rule of law nor law in general is ever absolutely certain.

Statutory References and Definitional Challenges

• Lord Bingham (referenced in the transcript as Lord Bingen) addressed the issue of certainty regarding the Constitutional Reform Act of $2005$.
• Section $1$ of the Constitutional Reform Act of $2005$ specifically references the rule of law, stating that the Act does not adversely affect the existing principle of the rule of law.
• Lord Bingen noted that the rule of law is an inherently ambiguous concept.
• He rejected the idea that the concept was so clear or self-evident that it required no definition, yet he argued that it should be defined by the courts rather than Parliament.
• Due to the difficulty of formulating a general definition of universal application, the UK Parliament made no attempt to provide a statutory definition.
• Similar approaches are found in New Zealand statutes:
  • The Lawyers and Conveyancers Act of $2006$.
  • The Senior Courts Act of $2016$.
• Both New Zealand acts make express reference to the rule of law as a concept but do not seek to define what it means.
• Contextualization is preferred: it is better to leave the definitional task to the courts to define the rule of law when actual factual situations arise.

The Differentiation Between Determinate and Indeterminate Laws

• The transcript contrasts two types of statutory offenses to illustrate that law is not always absolutely certain or beyond dispute:
  • The $50\,km/h$ speed limit: This is considered absolutely certain in both meaning and application. Exceeding the limit results in a statutory offense, and modern technology can calibrate the exact speed of vehicles to remove uncertainty.
  • Section $4(1)(A)$ of the Summary Offences Act of $1981$: This section reenacts the offense of offensive and disorderly behavior, which has existed for over $100$ years. Unlike the speed limit, "offensive behavior" is subjectively defined and lacks inherent certainty.
• An example provided involves students living on Maidstone Road who held a party at $11:00$ in the morning on a Sunday (the Sabbath). A neighbor, identifying as a law-abiding citizen on her day of worship, took great offense, whereas the students did not. This demonstrates how the definition of "offensive" depends on the subjective viewpoint of the beholder.

Case Study: Morse and the Police ($2012$)

• Case Reference: Morse and the Police ($2012$), $2$ in Law Reports at page $1$.
• Facts: Ms. Morse, a professional protester, attended an Anzac Day ceremony at a cenotaph near Parliament Buildings. While the ceremony was in progress, she set fire to a New Zealand flag on the grounds of Victoria University Law faculty and used drums and horns to draw attention to the burning flag.
• History: She was convicted of offensive behavior in the High Court and Court of Appeal.
• Supreme Court Ruling: The Supreme Court set aside the conviction, acknowledging that the offense is inherently uncertain and subjectively defined.
• The Court sought to provide an objective foundation by redefining the offense as a public order offense.
• The Court read into Section $4(1)$ a requirement not explicitly stated by Parliament: for behavior to be "offensive," it must conduce toward public disorder or cause others present to react in a way that breaches public order. Since this element was not made out, the offense was not proven.
• This case serves as evidence against the legal positivist claim of inherent legal certainty and demonstrates that superior courts allay legal uncertainties by providing clarity where it was previously lacking.

The Rule of Law in the Judicial Context: A Default Reaction to Injustice

• In the courts, the rule of law often operates as a "default reaction to injustice."
• Courts appeal to the rule of law for guidance particularly when there is no applicable principle of law directly in point for a matter before them.
• Constitutional norms often remain partially indeterminate or obscured until a specific situation of injustice arises, forcing courts to address what the rule of law requires in that specific factual setting.
• These factual situations materialize fundamental principles (such as liberty and freedom) into tangible, concrete forms.

Case Study: Anufoiva (2003)

• Case Name: Anufoiva (also referred to as Ms. Annie Fweaver or Annual Fever), a $2003$ decision of the UK House of Lords.
• Leading Judgment: Lord Stain.
• Legal Method: This decision exemplified "rhetorical legal method" by using the rule of law as a touchstone for justice.
• Facts: Periodic income support for an applicant for refugee status in the UK ceased without explanation. The officials purposefully withheld the information that an adverse decision had been made.
• Ruling: Although Lord Stain acknowledged the litigant was not particularly deserving or prepossessing, he stated that fundamental principles must be upheld. The rule of law requires extending judicial protection even to the undeserving.
• Outcome: The appellant was entitled to backdated income support for the period between the cessation of payments and the time she received formal notice.
• Conclusion: An uncommunicated adverse decision is, in law, "no decision at all." The rule of law requires that parties be aware of decisions affecting them so they may challenge them.

Case Study: Cornerhouse Research ($2008$)

• Facts: This UK case involved allegations of bribes and kickbacks given by UK arms manufacturers to Saudi Arabian officials to secure contracts. The Director of the Serious Fraud Office (SFO) began an investigation.
• The Threats: Saudi officials objected to the investigation and made covert threats. Consequently, the Director of the SFO pulled (discontinued) the investigation.
• Divisional Court (First Instance): Held that law enforcement agencies must maintain independence and repel improper threats or interference. The court found that surrendering to pressure undermines the rule of law. The Director was found to have abdicated his statutory function.
• House of Lords (Appeal): Overturned the Divisional Court decision using formalist legal reasoning.
• Difference in Framing:
  • The Divisional Court asked: "Was the director's decision in breach of the rule of law?" (Answer: Yes).
  • The House of Lords asked: "Was the director's decision one he was lawfully entitled to make?" (Answer: Yes, it was within the scope of his lawful powers).
• Elements of Judgment: The case illustrates that public law decision-making is characterized by judgment, choice, and discretion, contradicting positivist claims of absolute certainty.

Proposition 4: The Rule of Law as a Supranational Concept

• The rule of law transcends national borders and is upheld by all modern Western democracies, including both civil law and common law jurisdictions.
• This development is linked to the international human rights movement post-World War II ($1945$), which sought effective regulation of "rogue states."
• Key International Instruments:
  • The United Nations was established in $1945$ to replace the League of Nations.
  • The Universal Declaration of Human Rights ($1948$): This instrument kick-started the movement. Its preamble explicitly states that "human rights should be protected by the rule of law."
  • The European Convention on Human Rights ($1950$): Enshrined a similar catalogue of rights.
  • International Covenant on Civil and Political Rights (ICCPR): Adopted in $1966$, enforceable from $1976$.
• National Implementation:
  • UK Human Rights Act ($1998$) made the $1950$ Convention rights justiciable in national courts.
  • The Canadian Charter of Rights and Freedoms and the New Zealand Bill of Rights Act are premised on the ICCPR.
• The international human rights movement has injected "institutional morality" into the rule of law.

Transnational Rights Dialogue and the Role of Modern Technology

• Rights discourse has descended vertically from the international order into national bills of rights and is now traded horizontally between national legal systems.
• Many jurisdictions (Hong Kong, Canada, New Zealand, UK, Ireland, South Africa, parts of Australia) have internalized and enshrined international human rights into local law.
• Impact of the Internet: Modern technology facilitates this transnational dialogue with unprecedented speed and efficiency.
• Historically, a House of Lords decision might take $8$ to $9$ months to reach New Zealand by ship. Today, decisions are available on court websites the following day.
• Technology promotes "comparative rights jurisprudence" and the "cross-pollination" of legal ideas, as jurisdictions borrow from one another to fine-tune their own systems.
• These conversations quicken the reach of the rule of law and entrench its values in liberal democratic theory.

Case Study: Bagent’s Case ($1994$)

• Case Name: Bagent's case ($1994$), a leading Court of Appeal decision in New Zealand regarding the Bill of Rights Act.
• Ruling: The Court held that a person may seek public law compensation (referred to as "Bagent damages") against the state for a breach of the Bill of Rights if no other remedy is available.
• Judicial Reasoning: Lord Cook described "ransacking" international jurisdictions for precedent. The Court of Appeal discussed human rights cases from $8$ separate jurisdictions.
• Context: This was a controversial development because the specific remedies clause had been omitted from the Bill of Rights during its enactment. However, the court proceeded to ensure there was a remedy for every right.

Proposition 5: The Rule of Law as the Foundational Norm and Ultimate Principle of Legality

• The rule of law is the foundational norm for Western political systems.
• It is currently poised to challenge—or perhaps has already challenged—Parliamentary Sovereignty as the ultimate principle of Westminster legality.
• Lord Stain, a champion of human rights in the House of Lords from the late $1990s$ to the mid-$2000s$, argued in extrajudicial writings that the rule of law might "trump" parliamentary supremacy in exceptional cases.
• Potential Triggers for Judicial Intervention:
  • A government attempting to extend the life of Parliament arbitrarily (e.g., passing a statute to extend a term by $5$ years without an election).
  • A government attempting to tamper with the role of the courts by enacting a "privative clause" (a direction to the courts not to entertain judicial reviews).
  • A government attempting to tamper with the rule of law itself.
• Constitutional Duty: It is the court's constitutional duty to ensure government according to law (Dicey's first meaning of the rule of law).

The Dual Reinforcing Ideals of the Rule of Law

• The concept of the rule of law serves two mutually reinforcing ideals, tracing back to the writings of John Locke:
  1. The imperative to maintain civil society: Moving away from the "state of nature" where there is no law, to create organized state power and protection of property.
  2. The need to vouchsafe basic rights: Ensuring liberal democratic rights and freedoms where governments hold power in trust and reserve a large sphere of liberty for the individual.
• These two requisites—the formation of civil society and the protection of individual freedom—remain the core products of the rule of law.