Foundations and Interpretations of the Rule of Law

Foundations: The Social Contract and the State of Nature

Returning to the lecture from yesterday, the core concept of the rule of law is further developed by exploring the writings of Thomas Hobbes and John Locke. Before delving back into their theories, it is noted that the lecture and relevant materials are posted on LEARN for student reference. Both Hobbes and Locke operate from the singular premise of the state of nature, yet they arrive at vastly different conclusions due to their differing conceptions of the social contract. References for these subjects can be found in the text at paragraph $16.2.2$ for Hobbes' Leviathan and paragraph $8.2.1$ for Locke's Two Treatises.

Thomas Hobbes famously described the predicament of man in the state of nature as "solitary, poor, nasty, brutish, and short." This description characterizes a hostile environment governed by a state of anarchy where "anything went." Consequently, individuals chose to leave the state of nature to enter civil society, becoming parties to a social contract. In this transition, each subject surrenders a portion of their personal autonomy and liberty in exchange for the protections that the state of nature lacked. This transition necessitates organized and coercive state power within civil society. The challenge then becomes reconciling this coercive power with the concepts of liberty, autonomy, and freedom.

Hobbes' solution was an absolutist conception of the social contract. Individuals entered this agreement to be subject to the absolute command of an all-powerful sovereign known as the Leviathan. This sovereign imposes its will from above to ensure order, security, and tranquility within civil society. In contrast, John Locke proposed a social contract that did not subject the individual to the absolute command of a sovereign. Locke argued that governments act in a fiduciary capacity relative to the subject, holding power in trust for the people.

Under Locke's conception, organized state power remains necessary to impose protections through law, which was the original reason for exiting the state of nature. However, Locke maintained that governments hold this power in trust to reserve for the subject as large a sphere of liberty and freedom as possible. This perspective contains the germ of the modern liberal state. Locke is considered the architect of the modern liberal state, wherein individuals demand certain rights, freedoms, and autonomy to be reserved to them. This lecture further explores the rise of constitutionalism in the post-war era from the Second World War onwards, a period shaped by the international human rights movement that has imbued the rule of law with greater substantive moral content.

The Two Conceptions of the Rule of Law

The text, specifically at paragraph $8.1$, introduces two competing versions of the rule of law: the thin version and the thick version. The thin version aligns with the legal positivist viewpoint, while the thick version comports with the natural lawyer's view. These perspectives represent the ongoing struggle between reconciling state power with personal autonomy.

The thin version, as defined by legal positivists, is a minimalist concept that prescribes only formal procedural requirements for legal norms. According to this view, the rule of law requires that laws be general, certain, stable, accessible, and prospective. The natural lawyers also subscribe to these formal requirements but argue that the rule of law must go further.

Generality requires that laws apply to all and prohibits ad hominem legislation, which are laws directed at named or identifiable individuals. It is considered anathema to the rule of law for a legislature to declare a specific person guilty of an offense, as this would also constitute an inappropriate exercise of legislative judgment over judicial matters. While there are minor exceptions, such as private acts of Parliament to change specific trust arrangements, the general rule is the equal application and protection of the laws. Certainty, or more accurately, ascertainability, is necessary because individuals must be able to know what the law means to conform their activities to it. While courts exist to clarify legal questions, the law must be ascertainable through informed processes of statutory interpretation.

Stability dictates that the law should not be subjected to endless, irresponsible amendment and change, as this destabilizes the system and puts the individual at a disadvantage. Accessibility requires that laws be published and available to the public; the rule of law absolutely proscribes secretly promulgated laws because individuals cannot comply with what is not known. Finally, prospectivity requires that laws operate forward in time rather than retrospectively. Retrospective application is generally prohibited because it is impossible to comply with a law that did not exist at the time of an act. This is codified in the Bill of Rights Act, which prohibits retrospective criminal penalties.

The Thick Version and Institutional Morality

The thick version of the rule of law, championed by natural lawyers, embraces significantly more than formal procedural requirements. It operates as a principle of institutional morality—the collective morality of the state—that imposes discipline on public affairs. This broader version posits that the rule of law includes both substantive and formal prescriptions for government. It identifies standards of liberty and justice to guide public action and limits the exercise of public powers.

Under the thick conception, public powers must be exercised in accordance with their mandated purposes. This introduces the principles of judicial review, where the exercise of power can be challenged if a decision-maker fails to consider relevant mandated considerations or uses power for extraneous purposes. The rule of law in this sense is encapsulated by the idiom "government according to law." This concept promotes personal autonomy and limited government, aligning with Locke's view that power is held in trust. It reserves a sphere of liberty commensurate with maintaining civil society.

Legal positivism stands in contrast to this. In the positivist view, a valid law is simply any law established by a recognized legal authority, such as Parliament or the courts. For positivists, the merits or justice of a law are separate from its validity; a law can be "bad" but still be a valid law. Consequently, positivists see no necessary connection between law and morality. Natural lawyers, however, believe in an inextricable connection between the two, which leads to their broader substantive conception of the rule of law.

The Five Propositions of the Rule of Law

There are five propositions that articulate the natural lawyer's conception of the rule of law, discussed in paragraphs $8.1$ to $8.3.2$ (or pages $199$ to $208$ of the text). These propositions are: 1. The rule of law is a fundamental requirement of civil society. 2. The rule of law is a substantive and not merely procedural concept. 3. The rule of law is a normative concept for the guidance of public action. 4. The rule of law is a supranational concept that transcends national borders. 5. The rule of law is the foundational norm and ultimate principle of legality for Western political systems.

Each of these propositions is contested by legal positivists, though propositions $1$ and $4$ find more general agreement. Proposition $4$ highlights that the rule of law is a shared ultimate norm across modern liberal democracies, including civil law jurisdictions like Germany, France, and Italy, as well as common law jurisdictions like New Zealand, Australia, Canada, the United States, and the UK. This concept facilitates an international dialogue regarding rights, human rights, and the proper organization of the state. One jurisdiction may borrow human rights discourse from another, creating an international common law of human rights.

The five propositions serve as building blocks that establish a rule of law structure straddling the entire constitution. Lord Hope, in the "fox hunting case" (the Jackson case regarding entrenchment), noted that the rule of law is the "ultimate controlling factor on which our constitution is based." While there is no universal agreement on the meaning of the rule of law, a consensus has been forming around the natural lawyer's conception in the post-war era, fueled by the international human rights movement.

Historical Context and Totalitarianism

The rule of law is indispensable to a civilized society, a fact highlighted by history's many totalitarian regimes. A totalitarian regime is defined as a despotic, oppressive, and tyrannous government that renounces the rule of law, ruling instead through martial force, force of arms, and covert police operations. In such states, fear and repression lead to the capitulation of the human spirit. Totalitarian states suppress political resistance through military force, official sanctions, and police units that act as an arm of the government, often leading to human rights abuses. Examples include current reports from the theocracy in Iran, where clerics form the government and thousands of citizens have allegedly been killed by the state.

A primary historical example is Germany's Third Reich under Adolf Hitler. Hitler ascended to power as the Fuhrer of the Social Nationalist Party through established constitutional means and elections in $1933$ before seizing absolute power with the concurrence of the people. This regime awakened the world to the capacity for human degradation. During the Second World War ($1939$ to $1945$), Nazi Germany carried out the Holocaust, a systematic program of genocide that exterminated approximately $6,000,000$ Jewish men, women, and children. Genocide is the most virulent form of state violence and is classified not just as a war crime, but as a crime against humanity.

As Allied forces closed in on Berlin in the middle months of $1945$, British troops under Montgomery moved through Belgium, General Patton commanded American troops, and Russian troops arrived from the East. Battle-hardened GIs discovered concentration camps where bodies were piled $2 \text{ or } 3 \text{ meters}$ high because guards had fled before they could burn the corpses. The international community was jolted and repulsed by these discoveries, which prompted immediate new forms of international regulation once hostilities ceased.

The Rise of Constitutionalism

In $1945$, the United Nations was established to replace the moribund League of Nations and impose effective international regulation. In $1948$, the UN adopted the Universal Declaration of Human Rights ($UDHR$), the first modern international human rights instrument. This signaled the start of the international human rights movement, which injected new life and substantive content into the rule of law. Lord Cook of Thorndon in $1999$ termed this movement the "rise of constitutionalism," moving away from an arid conception of law toward one embracing principles of justice and liberty.

This movement defines the second proposition: that the rule of law is a substantive concept. Legal positivists like James Allen strongly disagree, maintaining a minimalist, formalist view. For positivists, the rule of law only requires that public action be authorized by law and that the law complies with formal requirements. They argue there is no necessary link to democracy, justice, equality, human rights, or human dignity. While they agree that like cases should be treated alike and that decision-makers should follow natural justice, they view these as formal, not substantive, requirements.

Legal Critiques and Moral Implications

Prominent legal positivists Joseph Raz and Judith Shklar have critiqued the substantive view of the rule of law. In "The Rule of Law and its Virtue" ($1979$), Joseph Raz warned against coupling the rule of law with social justice, arguing that social justice theories exist independently. He claimed that condemning unjust laws under the banner of the rule of law empties the concept of its independent purpose. Judith Shklar, writing in $1987$, argued that such coupling devalued the concept and reduced it to "ruling class chatter."

In response, natural lawyers argue that the rule of law is a moral concept with a normative purpose, and it must mean more than just "government according to law," as that could include government according to "bad" law. A prime example is the writ of habeas corpus, the oldest common law writ dating back to the $12^{\text{th}}$ century. Described as the "noble badge of liberty," it directs a jailer to produce a prisoner in person (corpus) and state grounds for detention. This protection against arbitrary detention is rendered worthless if the law simply authorizes arbitrary detention. Similarly, the right to security in property is meaningless if laws authorize expropriation without compensation (a "taking").

Legislation authorizing arbitrary detention, expropriation without compensation, virulent censorship, racial inequality, or the reversal of the presumption of innocence (the "golden thread" of common law) would be vehemently opposed as a denial of the rule of law. Joseph Raz, adhering to his formalist view, admitted in $1979$ that his conception of the rule of law does not prohibit laws that are oppressive, discriminatory, or morally reprehensible. He famously noted that a law legalizing slavery would still comply with his version of the rule of law if enacted through the normal recognized process. Therefore, a morally reprehensible state could still claim adherence to a formalist rule of law. The lecture concludes with the assertion that law emptied of moral content cannot distinguish between good and evil.