Rule of Law

Rule of Law

Vocabulary

Rule of Law

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

Key Concepts

Purpose of the Rule of Law

The Rule of Law seeks to reconcile:

  • Organised state power

  • Individual liberty

It provides a framework for legitimate government authority while protecting personal freedom.

Social Contract Theory

Thomas Hobbes

View

  • In the state of nature, life is insecure.

  • Individuals enter a social contract:

    • Surrender liberty

    • Accept absolute sovereign authority

    • Receive peace, security, and order in return

John Locke

View

  • Government is a fiduciary of the people.

  • Individuals retain significant autonomy and freedom.

  • State coercion should only be exercised when necessary.

Legal Positivism

Definition

  • Law is valid because it is created by recognised legal authorities.

  • Validity is independent of morality.

Key Requirements

Generality

  • Laws apply generally rather than arbitrarily.

Certainty

  • Laws should be predictable.

Stability

  • Laws should remain reasonably constant.

Accessibility

  • Laws must be publicly available and understandable.

Natural Law

Definition

  • Law is inherently connected to morality and justice.

  • Unjust laws may lack true legal legitimacy.

Proposition 1

The Rule of Law is a Fundamental Requirement of Civil Society

  • Society requires legal order and predictability.

  • Government power must be exercised according to law.

Proposition 2

The Rule of Law is a Substantive, Not Merely Procedural, Concept

Supporting Arguments

The Rule of Law includes substantive values such as:

  • Writ of habeas corpus

  • Security of property

  • Presumption of innocence

  • Freedom from discrimination

  • Te Tiriti o Waitangi principles

Joseph's View

  • A legal system emptied of moral content cannot distinguish between good and evil.

Totalitarian Regimes

  • Cannot genuinely claim adherence to the Rule of Law.

  • Otherwise the concept loses moral significance.

Historical Caution

  • Modern moral standards cannot always be imposed retrospectively on historical societies.

Criticisms

Joseph Raz

  • Warned against incorporating social justice.

  • Argued it strips the Rule of Law of independent meaning.

Sklar

  • Argued linking Rule of Law with social justice reduces it to political rhetoric or "ruling-class chatter."

Institutional vs Individual Morality

  • Morality of legal institutions may differ from personal morality.

Proposition 3

The Rule of Law is a Normative Concept Guiding Public Action

Ronald Dworkin

  • Described the Rule of Law as:

    • Aspirational

    • An ideal to be pursued

Sir Robin Cooke

The Rule of Law implies:

  • Representative democracy

  • Independent courts

  • Respect for Treaty principles

Critique

Lord Bingham

  • Described the Rule of Law as inherently ambiguous.

Parliamentary Silence

  • UK Parliament has never provided a statutory definition.

  • Similar position exists in New Zealand.

Counterargument

Rights instruments show that law operates according to normative values.

Examples include:

  • Universal Declaration of Human Rights (UDHR)

  • European Convention on Human Rights (ECHR)

  • International Covenant on Civil and Political Rights (ICCPR)

  • New Zealand Bill of Rights Act 1990 (NZBORA)

NZBORA Rights Supporting the Rule of Law

Section 8

  • Right to life.

Section 9

  • Freedom from torture and cruel treatment.

Section 12

  • Right to participate in democratic processes.

Section 14

  • Freedom of expression.

Section 15

  • Freedom of religion.

Section 25(a)

  • Right to a fair trial.

Section 25(c)

  • Presumption of innocence.

Section 26

  • Freedom from retrospective criminal penalties.

Section 27(2)

  • Right of access to courts.

Proposition 4

The Rule of Law is a Supranational Concept

  • Transcends national borders.

  • Recognised through international legal instruments and democratic systems worldwide.

Proposition 5

The Rule of Law is the Foundational Norm of Western Constitutional Systems

  • Acts as the ultimate principle of legality.

  • Serves as the foundation upon which constitutional government is built.

Critiques of the Rule of Law

Certainty is Often Impossible

Corner House Research Case

  • Demonstrated that public decision-making inevitably involves:

    • Judgement

    • Choice

    • Discretion

  • Challenges claims that law always provides certainty.

Morse v Police

  • Illustrates the indeterminate nature of legal concepts and legal reasoning.

Positivist Critique

Legal positivists argue:

  • Moral content makes the Rule of Law incapable of precise definition.

  • A concept that means everything risks meaning nothing.

Rule of Law in New Zealand Legislation

The Rule of Law frequently appears without definition, leaving interpretation to the courts.

Examples

  • Lawyers and Conveyancers Act 2006

  • Senior Courts Act 2016

Cases

Anufrijeva Case

  • Demonstrates how the Rule of Law shapes public policy.

  • Protects individual rights against arbitrary state action.

Corner House Research Case

  • Highlights the discretionary nature of governmental decision-making.

Morse v Police

  • Demonstrates uncertainty and flexibility within legal reasoning.

Fox Hunting Case

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

  • Establishes the Rule of Law as a foundational constitutional principle.

Bennett v Hawkesbury Road Magistrates Court

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

  • Reinforces the central constitutional importance of the Rule of Law.

Relationship Between Rule of Law and Te Tiriti

Areas of Overlap

  • Protection against arbitrary government action.

  • Accountability of public authorities.

  • Recognition of substantive rights.

  • Crown obligations toward Māori.

  • Constitutional legitimacy.

Modern Constitutional Significance

Both the Rule of Law and Te Tiriti:

  • Shape judicial reasoning.

  • Influence public administration.

  • Guide constitutional interpretation.

  • Operate as foundational principles within New Zealand's constitutional framework.