Does the Rule of Law Matter?

Most people in Western countries, one would like to think, see great value in the democracy they enjoy.  Rather fewer, perhaps, attach similar importance to the rule of law under which they live.

Yet the rule of law is a central element of the ordered, yet free, society which we have succeeded in creating.  It is the rule of law that ensures that government is not able to exercise arbitrary power, but is subject to the same legal checks and balances as apply to the rest of us.

It was the great Chief Justice, Sir Edward Coke, who established early in the seventeenth century the fundamental principle that “no man – not even the King – is above the law”.  At that time, the King was – or at least saw himself as -the government, and was determined that his supposedly divine right to rule could not be limited by any other body – neither parliament nor the courts.

Coke’s great principle is still alive today.  Governments will still try from time to time to behave as autocrats – and indeed, they find it easier in some ways to do so than did Charles the First.  This is because, in a modern parliamentary democracy, governments are often able to rely on their parliamentary majority to carry the day – and they therefore behave as though they can take parliament for granted, which often they can.  A compliant parliament can allow the executive, in other words, a virtually free hand.

Step up the courts.  It is the courts that will ensure that governments, even if they have command of parliament, cannot step over the mark.  The courts have developed a range of remedies available to the ordinary citizen when governments behave in an arbitrary fashion.  One of the earliest such remedies was the ancient writ of habeas corpus which required “government” or “officials” in whatever guise to give up “the body” – that is, to release a person who was being held illegally.

Since then, a whole body of law, known as administrative law, has been developed to rein in public authorities that exceed their legal authority; I had the great pleasure, as an Oxford law don many years ago, of making a small contribution to its development.

It is this body of law that ensures that a government minister who makes a decision affecting private rights will find his decision struck down if it is biased, or he suits only his own interests or fails to listen fairly to all sides, or he takes account of irrelevant factors or ignores relevant factors, or he behaves or decides unreasonably, or he makes a legal error, or exceeds the powers he can lawfully exercise.

The courts stand ready, at the request of an individual citizen, to conduct what is called a “judicial review” of decisions that might be vitiated by any of these errors and to make sure that governments cannot simply say “we are the government – we can do what we like.”

The “rule of law” is sometimes attacked by those who resent being constrained by the law of the land.  But it is the courts that stand as a bulwark between arbitrary power and the ordinary citizen and that guarantee to each one of us equality before the law.

Does any of this matter any more?  Yes, of course it does, and even more so in modern times when the power of government reaches into every aspect of our lives.  And we have just seen a striking current example, not here in New Zealand, but in the United States.

The new US President is obviously no constitutional lawyer.  He appeared to believe that, as President, he enjoyed supreme power – a modern Charles the First!  When the courts declared that, in banning entry to citizens of seven predominantly Muslim countries, he had exceeded his powers and had discriminated against people on unacceptable grounds, he was outraged, and attacked the courts as a whole for “usurping power”.

He appeared unaware that the law is not made merely on his say-so.  Much as he seemed to relish, with the cameras on him, the act of signing his “executive orders”, they must be made in a proper exercise of his legal powers.  If a would-be autocrat tries to exercise powers he does not have, it is in the interests of every citizen that he should be struck down.  We can all rest more easily under the rule of law.

Bryan Gould

14 February 2017.