APPENDIX 5: PAPER BY PROFESSOR PAUL CRAIG: THE RULE OF LAW.
1. Introduction
This paper seeks to provide guidance concerning the meaning of the ‘rule of law’,
in the light of section 1 of the Constitutional Reform Act 2005, which makes
explicit reference to that concept.
A ‘health warning’ is in order for anyone venturing into this area: a cursory glance
at the index of legal periodicals revealed 16,810 citations to books and articles
concerned with the rule of law, and that is certainly an underestimation, since
many articles discuss the concept in ways that might not necessarily be picked up
by the search engine and the number only covers legal material.
There is considerable diversity of opinion as to the meaning of the rule of law and
the consequences that do and should follow from breach of the concept. I will
nonetheless attempt to identify as objectively as possible different senses of the rule
of law.
2. Dicey’s Conception of the Rule Law
Modern conceptions of the rule of law will be considered below. It would however
be odd not to advert to Dicey’s conception,
174
given the prominence that it has had
in the UK. It should nonetheless be realised that his conception of the rule of law
was ambiguous in certain respects.
Dicey’s first principle of the rule of law was that ‘no man is punishable or can be
lawfully made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land. In
this sense the rule of law is contrasted with every system of government based on
the exercise by persons in authority of wide, arbitrary, or discretionary powers of
constraint’.
The first sentence requires that laws under which people are condemned should be
passed in the correct legal manner and that guilt should only be established
through the ordinary trial process. This is an important principle, although it
should be noted that nothing here speaks to the content of the laws which an
individual will have to face when taken before the courts. The meaning of the
second sentence is more problematic. The word ‘arbitrary’ could connote a clear
law, which was properly enacted by Parliament, but which might nonetheless be
regarded as arbitrary if it was thought to infringe certain fundamental rights, or if it
entailed excessive punishment. The word ‘arbitrary’ could alternatively be used to
describe a law passed in the correct legal manner, but where it was very vague or
unclear, with the result that individuals had no real idea how to plan their lives in
the light of the relevant legal rule. This sense of arbitrariness is independent of
whether the content of the legislation was just or unjust.
Dicey’s second principle of the rule of law concerns equality: ‘every man, whatever
be his rank or condition, is subject to the ordinary law of the realm and amenable
to the jurisdiction of the ordinary tribunals’.
174 The Law of the Constitution (10th ed, 1959). This formulation is concerned primarily with equal access to the courts, not with
the nature of the rules which individuals find when they get there.
175
It is true that
Dicey was explicitly against officials being accorded any special privileges, but
beyond this Dicey’s second principle does not take one very far. He showed little
concern with the role of law in deciding whether different rules applicable to
different groups were defensible on the ground that that there was some rational
justification for the difference in treatment.
Dicey’s third principle was that the unwritten constitution in the UK could be said
to be pervaded by the rule of law because rights to personal liberty, or public
meeting resulted from judicial decisions, whereas under many foreign constitutions
such rights flowed from a written constitution.
This third limb of the rule of law is ambiguous. It might be read to mean that a
society must possess certain individual rights if it is to conform to the rule of law.
The alternative reading was that if you wished to protect such rights then the
common law technique was better than that employed on the continent. Dicey
dealt in detail with the precarious protection of rights on the continent, where
constitutions enshrining rights would often be abrogated at the stroke of the pen or
the point of a sword. He felt that in the UK, where individual rights were the result
of numerous judicial decisions indicating when the individual was at liberty to
speak freely etc, it would be considerably more difficult for an authoritarian regime
to sweep these rights aside.
3. Modern Conceptions of the Rule of Law
The Diceyan view of the rule of law was therefore ambiguous in certain respects,
and similar uncertainties surround the historical meaning of the phrase
‘government of laws, not of men’.
The modern literature on the rule of law is, as noted above, extensive and diverse.
A number of different meanings of the rule of law can nonetheless be identified.
(a) The Rule of Law and Lawful Authority
A core idea of the rule of law to which all would subscribe is that the government
must be able to point to some basis for its action that is regarded as valid by the
relevant legal system. Thus in the UK such action would commonly have its
foundation in statute, the prerogative or in common law power. The relevant
measure would then have to be made by the properly authorised person or
institution, in the properly authorised manner
If the government cannot provide a legal foundation for its action then the UK
courts would regard the action as unlawful, since there would be no lawful
authority for it.
This core meaning of the rule of law tells one nothing as to the nature of the
challenged governmental action. The government might be seeking to achieve
some benign objective, or it might be attempting to do something that most would
regard as undesirable. This is irrelevant for the purposes of the present inquiry.
The measure would be equally contrary to the rule of law if the government could
not point to some basis for its action that would be regarded as valid by that legal
system. (b) The Rule of Law and Guiding Conduct
The meaning of the rule of law considered in the preceding section is important,
but limited. Any law properly passed by Parliament would meet the rule of law
defined in this manner. Thus the fact that laws should be passed in the correct
legal manner is a necessary facet of the rule of law, but it is not sufficient.
It is for this reason that most would agree that the rule of law demands more than
this. A further important aspect of the rule of law is that the laws thus promulgated
should be capable of guiding ones conduct in order that one can plan ones life.
It is from this general precept that Raz deduced a number of more specific
attributes that laws should have in order that they could be said to comply with the
rule of law.
176
All are related to the idea of enabling individuals to be able to plan
their lives. The ‘list’ includes the following: that laws should be prospective, not
retrospective; that they should be relatively stable; that particular laws should be
guided by open, general and clear rules; that there should be an independent
judiciary; that there should be access to the courts; and that the discretion which
law enforcement agencies possess should not be allowed to undermine the
purposes of the relevant legal rules.
The rule of law in the sense articulated here could be met by regimes whose laws
were morally objectionable, provided that they complied with the formal precepts
of the rule of law. It is equally the case that not all laws passed by a democratic
regime will necessarily comply with the rule of law.
The rule of law on this view is essentially a negative value, as Raz himself admits.
Given that the law can empower the state to do all manner of things the rule of law
minimises the danger created by the law itself. It does so by ensuring that whatever
the content of the law, at least it should be open, clear, stable, general and applied
by an impartial judiciary.
It would however be mistaken not to recognise the more positive side of the rule of
law when viewed in this manner. Even if the actual content of the law is morally
reprehensible, conformity to the rule of law will often be necessary to ensure that
individuals actually comply with the demands which the law imposes.
It is also important to recognise, as Raz emphasises, that the rule of law in the
above sense is only one virtue of a legal system, and may have to be sacrificed to
attain other desired ends. We may feel that the rule of law virtues of having clear,
general laws should be sacrificed if the best or only way to achieve a desired goal is
to have more discretionary, open-textured legal provisions. This may be so where
it is not possible to lay down in advance in the enabling legislation clear rules in
sufficient detail to cover all eventualities. Modifications to the rule of law in this
manner are not somehow forbidden or proscribed. Given that it is only one virtue
of a legal system it should not prevent the attainment of other virtues valued by
that system.
It is moreover important to be clear as to the consequences of breach of the rule of
law in the sense considered in this section. The fact that a law is vague or unclear,
and that it therefore provides little by way of real guidance for those affected by it,
will not lead to a statute being invalidated in the UK. The courts may well
interpret such a statute narrowly, in favour of the individual in such circumstances.
They might also read it down pursuant to the Human Rights Act 1998, if the
particular statute would otherwise infringe rights derived from the European Convention on Human Rights. If the courts felt unable to read it down, they could
issue a declaration of incompatibility under the HRA, and the matter would be
sent back to Parliament for reconsideration. The courts therefore have
considerable interpretive techniques at their disposal to ensure that legislation that
fails to meet the requirements of the rule of law set out above is construed
narrowly in favour of the individual. This does not alter the fact that UK courts
have not traditionally exerted power to invalidate an Act of Parliament on such
grounds.
The matter is different if the provision that fails to comply with the rule of law is
something other than a statute. There is nothing to prevent the courts from
invalidating other measures, whether they take the form of delegated legislation,
individual ministerial decisions, acts of local authorities or decisions of agencies. If
such a measure fails to comply with the requirements of the rule of law it is always
possible for the courts to use one of the principles of judicial review to annul the
measure. Thus if a minister purports to make a measure retrospective the courts
will require express authorisation from the enabling statute, or something closely
akin thereto, before they would be willing to accept that the minister’s powers
extended this far.
177
Similarly, if the contested ministerial measure was very vague
or unclear the courts would have a number of options at their disposal. They
might decide that this was not consistent with the primary legislation; that it
should be annulled under section 6 of the HRA; that the vagueness of the measure
was indicative that the minister was acting for improper purposes; or that the
challenged measure was an unreasonable exercise of the discretionary power
vested in the minister.
Many would subscribe to the analysis presented above, although they might well
disagree either as to its application in any particular instance, or as to whether the
rule of law values should be ‘sacrificed’ to attain some other desirable goal.
There have however been more radical challenges by those who argue that the
formal conception of the rule of law was always a mask for substantive inequalities
in power, and that in the modern day this formal conception is in any event
increasingly unattainable.
178 A key issue is whether the rule of law should encompass more than the formal
conception presented in this section. The contending arguments are complex, but
the essence of the disagreement can be presented as follows.
The rule of law as presented thus far is not concerned with the actual content of
the law, in the sense of whether the law is just or unjust, provided that the formal
precepts of the rule of law are themselves met. To put the same point in another
way, it is necessary on this view to consider the content of the law in order to
decide whether it complies with the precepts of the rule of law concerning clarity,
generality, non-retrospectivity etc, but provided that it does so comply then that is
the end of the inquiry.
The rationale for restricting the rule of law in this manner is as follows.
We may all agree that laws should be just, that their content should be morally sound and
that rights should be protected within society. The problem is that if the rule of
law is taken to encompass the necessity for ‘good laws’ in this sense then the
concept ceases to have an independent function. There is a wealth of literature
179devoted to the discussion of the meaning of a just society, the nature of the rights
which should subsist therein, and the appropriate boundaries of governmental
action. Political theory has tackled questions such as these from time immemorial.
To bring these issues within the rubric of the rule of law would therefore rob this
concept of an independent function. Laws would be condemned or upheld as
being in conformity with, or contrary to, the rule of law when the condemnation or
praise would simply be reflective of attachment to a particular conception of rights,
democracy or the just society. The message is therefore that if you wish to argue
about the justness of society do so by all means. If you wish to defend a particular
type of individual right then present your argument. Draw upon the wealth of
literature which addresses these matters directly. It is however on this view not
necessary or desirable to cloak the conclusion in the mantle of the rule of law,
since this will merely reflect the conclusion which has already been arrived at
through reliance on a particular theory of rights or the just society.
(c) The Rule of Law, Justice and Accountable Government
The view presented above has however been challenged. Those who support the
opposing view accept that the rule of law has the attributes mentioned in the
previous section, but they argue that the concept has more far-reaching
implications. Certain rights are said to be based on, or derived from, the rule of
law. The concept is used as the foundation for these rights, which are then used to
evaluate the quality of the laws produced by the legislature and courts.
It has also been argued that the rule of law provides the foundation for the controls
exercised by the courts over governmental action through judicial review. In this
sense the rule of law is expressive of how the state ought to behave towards
individuals in society. The rule of law is said to demand that governmental action
conforms to precepts of good administration developed through the courts, this
being an essential facet of accountable government in a democratic society. The
constraints imposed on government through judicial review are in part procedural
and in part substantive. The range of these principles varies, but normally includes
ideas such as: legality, procedural propriety, participation, fundamental rights,
openness, rationality, relevancy, propriety of purpose, reasonableness, equality,
legitimate expectations, legal certainty and proportionality. There has been a
vibrant academic debate as to whether such principles must be legitimated by
reference to legislative intent. There is nonetheless general agreement that it is the
courts that have developed the principles of judicial review over the past 350 years.
This general view has been advanced by a number of writers and judges, although
the precise detail of their analyses differ.
Thus Dworkin has argued forcefully that subject to questions of ‘fit’, the courts
should decide legal questions according to the best theory of justice, which is
central to the resolution of what rights people currently possess.
180 According to this theory, ‘propositions of law are true if they figure in or follow from the
principles of justice, fairness and procedural due process that provide the best constructive
interpretation of the community’s legal practice’.
181 It is integral to the Dworkinian approach that, subject to questions of fit, the court should choose
between ‘eligible interpretations by asking which shows the community’s structure of institutions as a whole in a better light from the stand-point of political
1. Introduction
This paper seeks to provide guidance concerning the meaning of the ‘rule of law’,
in the light of section 1 of the Constitutional Reform Act 2005, which makes
explicit reference to that concept.
A ‘health warning’ is in order for anyone venturing into this area: a cursory glance
at the index of legal periodicals revealed 16,810 citations to books and articles
concerned with the rule of law, and that is certainly an underestimation, since
many articles discuss the concept in ways that might not necessarily be picked up
by the search engine and the number only covers legal material.
There is considerable diversity of opinion as to the meaning of the rule of law and
the consequences that do and should follow from breach of the concept. I will
nonetheless attempt to identify as objectively as possible different senses of the rule
of law.
2. Dicey’s Conception of the Rule Law
Modern conceptions of the rule of law will be considered below. It would however
be odd not to advert to Dicey’s conception,
174
given the prominence that it has had
in the UK. It should nonetheless be realised that his conception of the rule of law
was ambiguous in certain respects.
Dicey’s first principle of the rule of law was that ‘no man is punishable or can be
lawfully made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land. In
this sense the rule of law is contrasted with every system of government based on
the exercise by persons in authority of wide, arbitrary, or discretionary powers of
constraint’.
The first sentence requires that laws under which people are condemned should be
passed in the correct legal manner and that guilt should only be established
through the ordinary trial process. This is an important principle, although it
should be noted that nothing here speaks to the content of the laws which an
individual will have to face when taken before the courts. The meaning of the
second sentence is more problematic. The word ‘arbitrary’ could connote a clear
law, which was properly enacted by Parliament, but which might nonetheless be
regarded as arbitrary if it was thought to infringe certain fundamental rights, or if it
entailed excessive punishment. The word ‘arbitrary’ could alternatively be used to
describe a law passed in the correct legal manner, but where it was very vague or
unclear, with the result that individuals had no real idea how to plan their lives in
the light of the relevant legal rule. This sense of arbitrariness is independent of
whether the content of the legislation was just or unjust.
Dicey’s second principle of the rule of law concerns equality: ‘every man, whatever
be his rank or condition, is subject to the ordinary law of the realm and amenable
to the jurisdiction of the ordinary tribunals’.
174 The Law of the Constitution (10th ed, 1959). This formulation is concerned primarily with equal access to the courts, not with
the nature of the rules which individuals find when they get there.
175
It is true that
Dicey was explicitly against officials being accorded any special privileges, but
beyond this Dicey’s second principle does not take one very far. He showed little
concern with the role of law in deciding whether different rules applicable to
different groups were defensible on the ground that that there was some rational
justification for the difference in treatment.
Dicey’s third principle was that the unwritten constitution in the UK could be said
to be pervaded by the rule of law because rights to personal liberty, or public
meeting resulted from judicial decisions, whereas under many foreign constitutions
such rights flowed from a written constitution.
This third limb of the rule of law is ambiguous. It might be read to mean that a
society must possess certain individual rights if it is to conform to the rule of law.
The alternative reading was that if you wished to protect such rights then the
common law technique was better than that employed on the continent. Dicey
dealt in detail with the precarious protection of rights on the continent, where
constitutions enshrining rights would often be abrogated at the stroke of the pen or
the point of a sword. He felt that in the UK, where individual rights were the result
of numerous judicial decisions indicating when the individual was at liberty to
speak freely etc, it would be considerably more difficult for an authoritarian regime
to sweep these rights aside.
3. Modern Conceptions of the Rule of Law
The Diceyan view of the rule of law was therefore ambiguous in certain respects,
and similar uncertainties surround the historical meaning of the phrase
‘government of laws, not of men’.
The modern literature on the rule of law is, as noted above, extensive and diverse.
A number of different meanings of the rule of law can nonetheless be identified.
(a) The Rule of Law and Lawful Authority
A core idea of the rule of law to which all would subscribe is that the government
must be able to point to some basis for its action that is regarded as valid by the
relevant legal system. Thus in the UK such action would commonly have its
foundation in statute, the prerogative or in common law power. The relevant
measure would then have to be made by the properly authorised person or
institution, in the properly authorised manner
If the government cannot provide a legal foundation for its action then the UK
courts would regard the action as unlawful, since there would be no lawful
authority for it.
This core meaning of the rule of law tells one nothing as to the nature of the
challenged governmental action. The government might be seeking to achieve
some benign objective, or it might be attempting to do something that most would
regard as undesirable. This is irrelevant for the purposes of the present inquiry.
The measure would be equally contrary to the rule of law if the government could
not point to some basis for its action that would be regarded as valid by that legal
system. (b) The Rule of Law and Guiding Conduct
The meaning of the rule of law considered in the preceding section is important,
but limited. Any law properly passed by Parliament would meet the rule of law
defined in this manner. Thus the fact that laws should be passed in the correct
legal manner is a necessary facet of the rule of law, but it is not sufficient.
It is for this reason that most would agree that the rule of law demands more than
this. A further important aspect of the rule of law is that the laws thus promulgated
should be capable of guiding ones conduct in order that one can plan ones life.
It is from this general precept that Raz deduced a number of more specific
attributes that laws should have in order that they could be said to comply with the
rule of law.
176
All are related to the idea of enabling individuals to be able to plan
their lives. The ‘list’ includes the following: that laws should be prospective, not
retrospective; that they should be relatively stable; that particular laws should be
guided by open, general and clear rules; that there should be an independent
judiciary; that there should be access to the courts; and that the discretion which
law enforcement agencies possess should not be allowed to undermine the
purposes of the relevant legal rules.
The rule of law in the sense articulated here could be met by regimes whose laws
were morally objectionable, provided that they complied with the formal precepts
of the rule of law. It is equally the case that not all laws passed by a democratic
regime will necessarily comply with the rule of law.
The rule of law on this view is essentially a negative value, as Raz himself admits.
Given that the law can empower the state to do all manner of things the rule of law
minimises the danger created by the law itself. It does so by ensuring that whatever
the content of the law, at least it should be open, clear, stable, general and applied
by an impartial judiciary.
It would however be mistaken not to recognise the more positive side of the rule of
law when viewed in this manner. Even if the actual content of the law is morally
reprehensible, conformity to the rule of law will often be necessary to ensure that
individuals actually comply with the demands which the law imposes.
It is also important to recognise, as Raz emphasises, that the rule of law in the
above sense is only one virtue of a legal system, and may have to be sacrificed to
attain other desired ends. We may feel that the rule of law virtues of having clear,
general laws should be sacrificed if the best or only way to achieve a desired goal is
to have more discretionary, open-textured legal provisions. This may be so where
it is not possible to lay down in advance in the enabling legislation clear rules in
sufficient detail to cover all eventualities. Modifications to the rule of law in this
manner are not somehow forbidden or proscribed. Given that it is only one virtue
of a legal system it should not prevent the attainment of other virtues valued by
that system.
It is moreover important to be clear as to the consequences of breach of the rule of
law in the sense considered in this section. The fact that a law is vague or unclear,
and that it therefore provides little by way of real guidance for those affected by it,
will not lead to a statute being invalidated in the UK. The courts may well
interpret such a statute narrowly, in favour of the individual in such circumstances.
They might also read it down pursuant to the Human Rights Act 1998, if the
particular statute would otherwise infringe rights derived from the European Convention on Human Rights. If the courts felt unable to read it down, they could
issue a declaration of incompatibility under the HRA, and the matter would be
sent back to Parliament for reconsideration. The courts therefore have
considerable interpretive techniques at their disposal to ensure that legislation that
fails to meet the requirements of the rule of law set out above is construed
narrowly in favour of the individual. This does not alter the fact that UK courts
have not traditionally exerted power to invalidate an Act of Parliament on such
grounds.
The matter is different if the provision that fails to comply with the rule of law is
something other than a statute. There is nothing to prevent the courts from
invalidating other measures, whether they take the form of delegated legislation,
individual ministerial decisions, acts of local authorities or decisions of agencies. If
such a measure fails to comply with the requirements of the rule of law it is always
possible for the courts to use one of the principles of judicial review to annul the
measure. Thus if a minister purports to make a measure retrospective the courts
will require express authorisation from the enabling statute, or something closely
akin thereto, before they would be willing to accept that the minister’s powers
extended this far.
177
Similarly, if the contested ministerial measure was very vague
or unclear the courts would have a number of options at their disposal. They
might decide that this was not consistent with the primary legislation; that it
should be annulled under section 6 of the HRA; that the vagueness of the measure
was indicative that the minister was acting for improper purposes; or that the
challenged measure was an unreasonable exercise of the discretionary power
vested in the minister.
Many would subscribe to the analysis presented above, although they might well
disagree either as to its application in any particular instance, or as to whether the
rule of law values should be ‘sacrificed’ to attain some other desirable goal.
There have however been more radical challenges by those who argue that the
formal conception of the rule of law was always a mask for substantive inequalities
in power, and that in the modern day this formal conception is in any event
increasingly unattainable.
178 A key issue is whether the rule of law should encompass more than the formal
conception presented in this section. The contending arguments are complex, but
the essence of the disagreement can be presented as follows.
The rule of law as presented thus far is not concerned with the actual content of
the law, in the sense of whether the law is just or unjust, provided that the formal
precepts of the rule of law are themselves met. To put the same point in another
way, it is necessary on this view to consider the content of the law in order to
decide whether it complies with the precepts of the rule of law concerning clarity,
generality, non-retrospectivity etc, but provided that it does so comply then that is
the end of the inquiry.
The rationale for restricting the rule of law in this manner is as follows.
We may all agree that laws should be just, that their content should be morally sound and
that rights should be protected within society. The problem is that if the rule of
law is taken to encompass the necessity for ‘good laws’ in this sense then the
concept ceases to have an independent function. There is a wealth of literature
179devoted to the discussion of the meaning of a just society, the nature of the rights
which should subsist therein, and the appropriate boundaries of governmental
action. Political theory has tackled questions such as these from time immemorial.
To bring these issues within the rubric of the rule of law would therefore rob this
concept of an independent function. Laws would be condemned or upheld as
being in conformity with, or contrary to, the rule of law when the condemnation or
praise would simply be reflective of attachment to a particular conception of rights,
democracy or the just society. The message is therefore that if you wish to argue
about the justness of society do so by all means. If you wish to defend a particular
type of individual right then present your argument. Draw upon the wealth of
literature which addresses these matters directly. It is however on this view not
necessary or desirable to cloak the conclusion in the mantle of the rule of law,
since this will merely reflect the conclusion which has already been arrived at
through reliance on a particular theory of rights or the just society.
(c) The Rule of Law, Justice and Accountable Government
The view presented above has however been challenged. Those who support the
opposing view accept that the rule of law has the attributes mentioned in the
previous section, but they argue that the concept has more far-reaching
implications. Certain rights are said to be based on, or derived from, the rule of
law. The concept is used as the foundation for these rights, which are then used to
evaluate the quality of the laws produced by the legislature and courts.
It has also been argued that the rule of law provides the foundation for the controls
exercised by the courts over governmental action through judicial review. In this
sense the rule of law is expressive of how the state ought to behave towards
individuals in society. The rule of law is said to demand that governmental action
conforms to precepts of good administration developed through the courts, this
being an essential facet of accountable government in a democratic society. The
constraints imposed on government through judicial review are in part procedural
and in part substantive. The range of these principles varies, but normally includes
ideas such as: legality, procedural propriety, participation, fundamental rights,
openness, rationality, relevancy, propriety of purpose, reasonableness, equality,
legitimate expectations, legal certainty and proportionality. There has been a
vibrant academic debate as to whether such principles must be legitimated by
reference to legislative intent. There is nonetheless general agreement that it is the
courts that have developed the principles of judicial review over the past 350 years.
This general view has been advanced by a number of writers and judges, although
the precise detail of their analyses differ.
Thus Dworkin has argued forcefully that subject to questions of ‘fit’, the courts
should decide legal questions according to the best theory of justice, which is
central to the resolution of what rights people currently possess.
180 According to this theory, ‘propositions of law are true if they figure in or follow from the
principles of justice, fairness and procedural due process that provide the best constructive
interpretation of the community’s legal practice’.
181 It is integral to the Dworkinian approach that, subject to questions of fit, the court should choose
between ‘eligible interpretations by asking which shows the community’s structure of institutions as a whole in a better light from the stand-point of political
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