The following is an excerpt from the author’s chapter in Constitutional Democracy Under Stress – A Time For Heroic Citizenship, Peter L. Biro (ed.), forthcoming from Mosaic Press, Oakville, Canada
The Rule of Law entails the existence of a legal framework, binding at all times on the government and also on individuals in at least some of their interactions with one another. The rules of this framework ought to take a particular form—they must be general, prospective, stable, clear, and so on. The legal position of individuals within this framework can only be changed without their consent pursuant to its rules and in accordance with specific procedures, judicial, administrative, or legislative on the other. The Rule of Law may also have a substantive component, and in particular require the protection of at least some fundamental rights against interference by the government, or at least interference without very clear authority.
But why is it important that our law live up to these requirements? What are they to us, as citizens in a democracy, beyond what looks like a perfunctory assertion in the preamble of the Charter? They are not just a catechism for lawyers. The law—if it complies with the Rule of Law—protects us, “in safety and peace”, as Sir Edward Coke long ago told a skeptical James I. How so? Indeed, isn’t a commitment to the Rule of Law a relic of a bygone age, more lamentable than lamented, in which preoccupation with the forms and procedures of law, and with the rights of the property-owning classes, prevailed over that with justice?
One reason for valuing the Rule of Law is that it is our best and quite possibly only chance to contain the exercise of power and to counteract the arbitrariness inherent in the exercise of power in the absence of law. It is, to quote the Supreme Court, the bulwark against “government … bound only by its whim, not its word”. Or, in Jeremy Waldron’s words, it “is an ideal designed to correct dangers of abuse that arise in general when political power is exercised”, and the same could be said not just of political but also of economic power, or indeed of the power of the physically stronger over the weaker. This is not to deny that power, even exercised in accordance with law, can be coercive; nor, conversely, to wish to eliminate all exercise of power, or even to subordinate all human relationships to law. Living under the law does not always mean living in peace, love, and brotherhood. It is only a less unpalatable alternative to living under the yoke of brute force or of manipulation.
Power exercised in accordance with law is predictable and limited. It is also contestable. It stands, not on an equal footing to be sure with those who are subject to it, but, as Lon Fuller insisted in The Morality of Law, in a relationship of “reciprocity”, which acknowledges rights and obligations on both sides. It is a truism that the phrase “a government of laws, not men” (or women), not infrequently taken to be a synonym of the Rule of Law, cannot be taken literally. Of course, it is human beings who make (many) laws, human beings who interpret them, and human beings again who apply them. Yet if the decisions of these human beings are bound by law—if there exists law that constrains them, and this law is complied with—their power is not unlimited, and there is a real sense in which law, rather than their will, governs.
It is precisely the constraint that law represents that so infuriated James I, and that infuriates his spiritual heirs, as impatient as he was of limits on their ability to do what they are convinced is right and necessary or just. Be they administrators on a mission to rationalize and organize society, do-gooders on a quest for equality, or patriots in pursuit of national greatness, they resent their inability to act without prior authorization; they chafe at the need to give those unwilling to be organized or equalized opportunities to challenge their commands; they would disregard ancient rights in the pursuit of the greater good. They wish they could do what they believe is necessary, right, and just.
And it is true, of course, that even scrupulous adherence to the requirements of the Rule of Law is not enough to guarantee justice. No advocate of the Rule of Law has ever contended otherwise, and Fuller’s much more limited suggestion, that the Rule of Law at least ensures against the grossest injustice is controversial. But Fuller is right to denounce “the vacuity of the view that law simply expresses a datum of legitimated social power” and to insist that it is “dangerous to take that view seriously”. For one thing, in Joseph Raz’s words, “the rule of law is … is a necessary condition for the law to be serving directly any good purpose at all”. But more than that: an unjust law is something that can be denounced and repealed; lawless justice can only ever be a pretense, a deceptive label for the imposition of one person’s or group’s will over others.
Respect for the Rule of Law is also inextricably linked with that for human dignity. To quote Fuller again, formal Rule of Law, which emphasizes the guiding function of public, prospective, clear rules in the face of which individuals can plan their lives, securing the co-operation of their fellows and avoiding reproof from the authority, rests on “a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults”, while violations of its requirements are “an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey to him your indifference to his powers of self-determination.” Meanwhile, the procedural component of the Rule of Law, as Professor Waldron points out, reflects the sense “that law is a mode of governing people that treats them with respect, as though they had a view or perspective of their own to present on the application of the norm to their conduct and situation”—or to the making of that norm in the first place. And, of course, insofar as the Rule of Law encompasses fundamental rights such as that to be free from enslavement or torture, or even property rights—without which individuals can be reduced to misery and abject dependency by government fiat—it is essential for the respect of human dignity in yet another way.
If, despite all this, the value of the Rule of Law is not obvious to those who think of it as unimportant at best, and an obstacle on our way to the greater good at worst, this may be due, ironically, precisely to the success of the Rule of Law and with the strength of our commitment to it, despite various shortcomings of the Canadian legal system in this regard. It is difficult for us to imagine what a world without the Rule of Law is like, and so to understand what difference the Rule of Law makes to our lives. Examples of societies, contemporary (such as Russia and China) and historical (Nazi Germany is oft-invoked example), where the Rule of Law has been abandoned, or perhaps never really existed, may seem alien; invoking them to defend the Rule of Law may be deemed a violation of the Godwin rule.
Yet we can also draw on other representations of what a world without the Rule of Law looks like, perhaps the more convincing for being fictional. It is a world in which one can be arrested for no apparent reason, and perhaps no reason at all; in which one can be tried without knowing the law governing one’s case, or meeting the judges in charge of it, or being able to contradict the claims of one’s accusers; in which one can be brutally killed at the end, or perhaps in the middle, of it all, without any opportunity to challenge the sentence or seek a reprieve. It is a world that is, in a word, Kafkaesque. It is a world in which no one who disdains the Rule of Law as insufficiently preoccupied with justice would wish to live.
For them, as for all of us, the Rule of Law is indeed an essential protection. It is a shield against arbitrary power, an assurance of being able to plan our lives, a promise of being heard before being interfered with, and, perhaps, a guarantee of fundamental rights. It is no doubt a constraint on what we can achieve, but, unless we hope to always be exercising power and never to be subject to the exercise of power by others—which citizens in a democracy, unlike aspiring absolute monarchs, cannot and should not hope for—this constraint is a price well worth paying for the security and freedom the Rule of Law offers us. The Rule of Law is precious, and we should treasure it.