• 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.



  1. Patricia says: February 14, 2017 at 5:32 amReply

    I agree Bryan. The rule of law is the most important thing any country can have but, and there is always a but in this life, it is the implementation of the rule of law that has a corresponding importance. Unless a law is implemented without fear or favour then the rule of law is impotent. The implementation of the rule of law can also be easily reduced by, for instance, not having enough police to enforce it or directly, as was the case in the Pike River mine disaster by not have enough mine inspectors to enforce the Health and Safety legislation. Another example is there are not enough inspectors to prosecute those employers who pay their employees below the minimum wage. In my view this reduction in the implementation of the rule of law is a deliberate policy of all right wing governments

    • Bryan Gould says: February 14, 2017 at 6:46 pmReply

      Quite right, Patricia. Access to the law is also important – legal aid and community law services have to be properly funded.

  2. Niall cahill says: February 15, 2017 at 12:19 amReply

    Hi Bryan ,
    Greetings from Ireland .

    I read with interest your take on whether the rule of law matters or not ,
    As a brief anecdote, some ten years or more ago I became intimately involved in a law case where my younger brother, a Professor of Biotechnology , challenged in law, the decision of the University President to terminate his employment and litigated against the University and its President.

    He being my younger brother, of course I was bound to get involved in his defence, knowing him to be a just, moral and principled individual. I arrived at the Four Courts in Dublin to meet his legal team with him as we sought to secure an Interlocutory Injunction against the University. After making some introductory remarks , and advising his Solicitor and Junior and Senior Counsel on our intention to fight his case all the way on the principle of justice , his team ( or one of them) turned to me in a condescending fashion and said to me .. ‘What ever gave you the impression that this place was about justice … This is about the Law.’ . The University President that you guys are taking on is an employment lawyer who writes the books that we read.
    There is not a judge in the land who will support you.

    Two years later, after a four day High Court hearing , we won the case on all counts and my poor brother was totally vindicated . The University appealed to our Supreme Court where they again lost .
    The President of the University iin question subsequently left our country to move to Scotland,, no loss there.

    So much for the rule of Law which he and his apparatchiks attempted to hide behind , although unfortunately the Irish Univesity system is reeking with such ‘respect ‘ for the rule of law.

Leave a reply.