{"id":3247,"date":"2019-11-22T18:49:36","date_gmt":"2019-11-22T18:49:36","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3247"},"modified":"2019-11-22T18:50:29","modified_gmt":"2019-11-22T18:50:29","slug":"a-citizens-guide-to-the-rule-of-law","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/a-citizens-guide-to-the-rule-of-law\/","title":{"rendered":"A Citizen’s Guide to the Rule of Law"},"content":{"rendered":"\n

The following is an excerpt from the author\u2019s chapter in Constitutional Democracy Under Stress – A Time For Heroic Citizenship,<\/strong> Peter L. Biro (ed.), forthcoming from Mosaic Press, Oakville, Canada <\/em><\/p>\n\n\n\n

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\u2014they 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. <\/p>\n\n\n\n

But why is it important that our law live up to these\nrequirements? What are they to us, as citizens in a democracy, beyond what\nlooks like a perfunctory assertion in the preamble of the Charter<\/em>? They are not just a catechism for lawyers. The law\u2014if it\ncomplies with the Rule of Law\u2014protects us, \u201cin safety and peace\u201d, as Sir Edward\nCoke long ago told a skeptical James I. How so? Indeed, isn\u2019t a commitment to\nthe Rule of Law a relic of a bygone age, more lamentable than lamented, in\nwhich preoccupation with the forms and procedures of law, and with the rights\nof the property-owning classes, prevailed over that with justice?<\/p>\n\n\n\n

One reason for valuing the Rule of Law is that it is our\nbest and quite possibly only chance to contain the exercise of power and to\ncounteract the arbitrariness inherent in the exercise of power in the absence\nof law. It is, to quote the Supreme Court, the bulwark against \u201cgovernment \u2026 bound only by its whim,\nnot its word\u201d. Or, in Jeremy Waldron\u2019s words, it \u201cis an ideal designed\nto correct dangers of abuse that arise in general when political power is\nexercised\u201d, and the same could be said not just of political but also of\neconomic power, or indeed of the power of the physically stronger over the\nweaker. This is not to deny that power, even exercised in accordance with law,\ncan be coercive; nor, conversely, to wish to eliminate all exercise of power,\nor even to subordinate all human relationships to law. Living under the law\ndoes not always mean living in peace, love, and brotherhood. It is only a less\nunpalatable alternative to living under the yoke of brute force or of\nmanipulation.<\/p>\n\n\n\n

Power exercised in accordance with law is predictable and\nlimited. It is also contestable. It stands, not on an equal footing to be sure\nwith those who are subject to it, but, as Lon Fuller insisted in The Morality of Law<\/em>, in a relationship\nof \u201creciprocity\u201d, which acknowledges rights and obligations on both sides. It\nis a truism that the phrase \u201ca government of laws, not men\u201d (or women), not\ninfrequently taken to be a synonym of the Rule of Law, cannot be taken\nliterally. Of course, it is human beings who make (many) laws, human beings who\ninterpret them, and human beings again who apply them. Yet if the decisions of\nthese human beings are bound by law\u2014if there exists law that constrains them,\nand this law is complied with\u2014their power is not unlimited, and there is a real\nsense in which law, rather than their will, governs. <\/p>\n\n\n\n

It is precisely the constraint that law represents that so\ninfuriated James I, and that infuriates his spiritual heirs, as impatient as he\nwas of limits on their ability to do what they are convinced is right and\nnecessary or just. Be they administrators on a mission to rationalize and\norganize society, do-gooders on a quest for equality, or patriots in pursuit of\nnational greatness, they resent their inability to act without prior authorization;\nthey chafe at the need to give those unwilling to be organized or equalized\nopportunities to challenge their commands; they would disregard ancient rights\nin the pursuit of the greater good. They wish they could do what they believe\nis necessary, right, and just.<\/p>\n\n\n\n

And it is true, of course, that even scrupulous adherence to\nthe requirements of the Rule of Law is not enough<\/em>\nto guarantee justice. No advocate of the Rule of Law has ever contended\notherwise, and Fuller\u2019s much more limited suggestion, that the Rule of Law at\nleast ensures against the grossest injustice is controversial. But Fuller is\nright to denounce \u201cthe vacuity of the view that law simply expresses a datum of\nlegitimated social power\u201d and to insist that it is \u201cdangerous to take that view\nseriously\u201d. For one thing, in Joseph Raz\u2019s words, \u201cthe rule of law is \u2026 is a\nnecessary condition for the law to be serving directly any good purpose at\nall\u201d. But more than that: an unjust law is something that can be denounced and\nrepealed; lawless justice can only ever be a pretense, a deceptive label for\nthe imposition of one person\u2019s or group\u2019s will over others.  <\/p>\n\n\n\n

Respect for the Rule of Law is also inextricably linked with\nthat for human dignity. To quote Fuller again, formal Rule of Law, which\nemphasizes the guiding function of public, prospective, clear rules in the face\nof which individuals can plan their lives, securing the co-operation of their\nfellows and avoiding reproof from the authority, rests on \u201ca commitment to the\nview that man is, or can become, a responsible agent, capable of understanding\nand following rules, and answerable for his defaults\u201d, while violations of its\nrequirements are \u201can affront to man\u2019s dignity as a responsible agent. To judge\nhis actions by unpublished or retrospective laws, or to order him to do an act\nthat is impossible, is to convey to him your indifference to his powers of\nself-determination.\u201d Meanwhile, the procedural component of the Rule of Law, as\nProfessor Waldron points out, reflects the sense \u201cthat law is a mode of\ngoverning people that treats them with respect, as though they had a view or\nperspective of their own to present on the application of the norm to their\nconduct and situation\u201d\u2014or to the making of that norm in the first place. And,\nof course, insofar as the Rule of Law encompasses fundamental rights such as\nthat to be free from enslavement or torture, or even property rights\u2014without\nwhich individuals can be reduced to misery and abject dependency by government\nfiat\u2014it is essential for the respect of human dignity in yet another way.<\/p>\n\n\n\n

If, despite all this, the value of the Rule of Law is not\nobvious to those who think of it as unimportant at best, and an obstacle on our\nway to the greater good at worst, this may be due, ironically, precisely to the\nsuccess of the Rule of Law and with the strength of our commitment to it,\ndespite various shortcomings of the Canadian legal system in this regard. It is\ndifficult for us to imagine what a world without the Rule of Law is like, and\nso to understand what difference the Rule of Law makes to our lives. Examples\nof societies, contemporary (such as Russia and China) and historical (Nazi\nGermany is oft-invoked example), where the Rule of Law has been abandoned, or\nperhaps never really existed, may seem alien; invoking them to defend the Rule\nof Law may be deemed a violation of the Godwin rule.<\/p>\n\n\n\n

Yet we can also draw on other representations of what a\nworld without the Rule of Law looks like, perhaps the more convincing for being\nfictional. It is a world in which one can be arrested for no apparent reason,\nand perhaps no reason at all; in which one can be tried without knowing the law\ngoverning one\u2019s case, or meeting the judges in charge of it, or being able to\ncontradict the claims of one\u2019s accusers; in which one can be brutally killed at\nthe end, or perhaps in the middle, of it all, without any opportunity to\nchallenge the sentence or seek a reprieve. It is a world that is, in a word,\nKafkaesque. It is a world in which no one who disdains the Rule of Law as\ninsufficiently preoccupied with justice would wish to live.<\/p>\n\n\n\n

For them, as for all of us, the Rule of Law is indeed an\nessential protection. It is a shield against arbitrary power, an assurance of\nbeing able to plan our lives, a promise of being heard before being interfered with,\nand, perhaps, a guarantee of fundamental rights. It is no doubt a constraint on\nwhat we can achieve, but, unless we hope to always be exercising power and\nnever to be subject to the exercise of power by others\u2014which citizens in a\ndemocracy, unlike aspiring absolute monarchs, cannot and should not hope\nfor\u2014this constraint is a price well worth paying for the security and freedom\nthe Rule of Law offers us. The Rule of Law is precious, and we should treasure\nit.<\/p>\n","protected":false},"excerpt":{"rendered":"

The following is an excerpt from the author\u2019s 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 …<\/p>\n","protected":false},"author":1256,"featured_media":1849,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36,34],"tags":[526,527,255,234,56,136],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3247"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1256"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=3247"}],"version-history":[{"count":1,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3247\/revisions"}],"predecessor-version":[{"id":3248,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3247\/revisions\/3248"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1849"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=3247"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=3247"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=3247"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}