What is the Rule of Law?

What is the Rule of Law?

Robin Speed, President of the Rule of Law Institute of Australia offers the following as regards the rule of law:

The rule of law is an overarching principle which ensures that Australians are governed by laws which their elected representatives make and which reflect the rule of law. It requires that the laws are administered justly and fairly.

The website of the Federal Attorney General’s office states¹²:

The rule of law underpins the way Australian society is governed

The website goes on to indicate that:

We uphold the rule of law through our daily work to ensure:

• laws are clear, predictable and accessible
• laws are publicly made and the community is able to participate in the law-making process
• laws are publicly adjudicated in courts that are independent from the executive arm of government
• dispute settlement is fair and efficient where parties cannot resolve disputes themselves

These statements whilst accurate and appropriate assume a shared understanding of what is meant by “the rule of law” and its importance to the community. The difficulties with such definition are inherent in the following by Geoffrey de Q. Walker in The rule of law: foundation of constitutional democracy, (1st Ed., 1988)¹³:

There is no single agreed definition of the rule of law. However, there is a basic core definition that has near universal acceptance. As Emeritus Professor Geoffrey Walker, has written in his defining work on the rule of law in Australia “most of the content of the rule of law can be summed up in two points: (1) that the people (including, one should add, the government) should be ruled by the law and obey it and (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it”

With regards to disobedience of the law the 1946 Nuremberg War Trials (The International Military Tribunal for Germany) had concluded:

…individuals have international duties, which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State, if the State in authorising action moves outside its competence under international law.

That a soldier was ordered to kill or torture in violation of the international law of war has never been recognised as a defence to such acts of brutality, though…the order may be urged in mitigation of the punishment. The truetest, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.

Such dicta would, in the case of unjust laws, such as might authorise torture or extra judicial killing, be argued to apply.

Martin Luther King Jnr had expressed the domestic and generally Nuremberg position succinctly as:

One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws¹⁴

And Henry Thoreau had described the role of the citizen as regards unjust laws:

If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law¹⁵

The World Justice Project¹⁶ (WJP) provides a more expansive definition of the Rule of Law in the following terms:

The rule of law is a system of rules and rights that enables fair and functioning societies…in which the following four universal principles are upheld:

• The government and its officials and agents as well as individuals and private entities are accountable under the law;
• The laws are clear, publicised, stable and just; are applied evenly; and protect fundamental rights, including the security of persons and property;
• The process by which laws are enacted, administered and enforceable is accessible, fair and efficient;
• Justice is delivered [in a] timely [fashion] by competent, ethical and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.

These 4 principles are then further developed by 9 factors by which the extent to which the rule of law is experienced being:

• Constraints on government powers (meaning that legislators are held accountable)
• Absence of corruption (such as use of public power for private gain)
• Open Government (including transparency of decision making, freedom to information and free and open reporting)
• Fundamental Rights (such rights being clearly identified, acknowledged, protected, universally applied and free from infringement by legislation or application of decisions)
• Order and Security (ensuring that individuals and society collectively are protected from violence so that citizens feel secure)
• Regulatory enforcement (ensuring that laws are openly, publically and consistently applied and enforced)
• Civil Justice (the availability of and free, unfettered and equal access to a means of resolution of civil disputes between citizens)
• Criminal Justice (a means of redressing grievances arising from alleged offences against society)
• Informal Justice (the acknowledgement of traditional, tribal, religious and community based systems of law and dispute resolution).

Based upon these factors the WJP maintains a world “Rule of Law Index”¹⁷ in which Australia ranks 8th¹⁸ of 99 countries ranked¹⁹.

There are a number of particular areas of Australia’s ranking that are less favourable than others (both within Australia’s overall ranking and as compared with comparable, western countries). It is these aspects of the ranking which I wish to explore and discuss as illustrative of challenges which the rule of law faces in the 21st Century and including:

• No discrimination in Criminal Law (0.53/1)
• No unreasonable delays in justice systems (score 0.6/1)
• Effective Correctional System (0.64/1)
• Access and affordability of Civil Justice (0.48/1)
• Equal treatment before the law with no discrimination (0.65/1)

One aspect of the WJP Index which inherently impacts the last criteria above (equal treatment before the laws) is the acceptance and differentiation within the index that those members of society within a “high income group” enjoy a far better experience of and express a far higher confidence in the effective operation of the rule of law than those from without that group.

One further observation which must be made and which is a great credit to the Judiciary within Australia (of which I am part) is scoring with respect to the issue “How serious is the corruption of Judges and Judicial Officers…they won’t move the case unless the parties bribe them” which attracts a 0% response and which applies equally to both criminal and civil Courts as well as the response to “No corruption in the judiciary” at 94% (both responses demonstrating a substantial and appropriate public faith in the independence and integrity of our judiciary).

Read more here from Judge Joe Harman

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