Law Society Rule
The question of the purpose of the rule of law and how the boundaries should be drawn between moral judgement and the need to maintain a basic level of order within a society has been asked, over the centuries, by many eminent theorists from the legal, political and philosophical world. Several different opinions have emerged with varying degrees of agreement, with the concept that the rule of law is the law and we must obey it, regardless of how unjust the rules may appear.
Although the exact meaning of the rule of law has been interpreted in different ways by the various different theorists, the very basic principle that the rule of law means that no individual is above the law seems to hold in all interpretations. In England, the prime example of the rule of law is the Magna Carter in which King John agreed to abide by the feudal laws and the placing of limits on fees relating to feudal land.
What is the Rule of Law?
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Before considering whether or not the rule of law consists merely of a body of rules or whether there is more to the way in which the rule of law is applied, it is first necessary to consider exactly what is meant by the ‘rule of law’.
Dicey was not, in fact, responsible for the birth of the rule of law, but was instrumental in bringing it into the public arena for debate and consideration. He contended that the rule of law was made up of three key principles. Firstly, that an individual has the freedom to act in any way he so wishes without punishment provided it is not in breach of any law. This gives supremacy to the rule of law over any other arbitrary act of power that is not backed in law.
Secondly, that no one is above the law meaning that every subject, regardless of stature, can be held accountable to the law and punished in the courts of the land. Thirdly, that the rule of law is based on the collective rights of all individuals. Essentially, this means that the courts will enforce individual rights on a collective basis to all subjects within its jurisdiction.
This basic concept has been somewhat extended in recent years, most notably by Lord Bingham in his lecture given on 16 November 2006 to Cambridge University where he put forward eight sub-rules that should be seen as part of the overall rule of law. These were that firstly, the law should be available and understandable to all it governs, based on the premise that if someone is to be governed by a law they should be able to understand it fully.
Secondly, that when faced with the decision of liability or accountability, the law should be used without so far as is possible the use of discretion. Thirdly, that the law in the way in which it is applied should be equal and universal to all. He did, however, recognise that at times it would be necessary for some individuals to be treated differently. Fourthly, that any law must provide a basic level of protection for all fundamental human rights, to every subject, regardless of circumstances. Fifthly, where there is a civil dispute that cannot be resolved, the parties should have access to cost effective and efficient means of dealing with the dispute.
Sixthly, that all members of government or officers of the government should act in good faith when carrying out their law enforcement duties and should not act outside of their individual powers. Seventhly, that any adjudicative process should be fair and transparent in the way it arrives at decisions. Finally, the state has to consider its obligations to international law when complying with any national rule of law.
In essence, the rules laid out by L Bingham are not substantially different from those laid out by Dicey; they are merely more detailed regarding the way in which the laws should be applied. This offers greater guidance on the subject of what an individual should do when faced with a seemingly unjust law. It also gives greater insight into the way in which the rule of law should be viewed, generally, and applied in relation to other political, religious and moral frameworks.
Application of the Rule of Law
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Having understood the basic principles of what the rule of law contains, it is then necessary to move forward to consider how this applies and actually works, in practice, in relation to society as a whole. Again, this area has drawn attention from some of the great legal theorists of all time and has, in some cases, been hotly debated.
One of the fundamental ideas laid down by Dicey is that the government has no greater authority in terms of the way in which it is viewed in the courts. The rule of law clearly indicates that the government must have restraints and cannot simply act in any arbitrary way that it pleases.
This has been borne out in several court cases including the early case of Entick v Carrington where it was held that the warrant a Home Secretary had issued to enter a privately owned property was against the law and, therefore, the government was guilty of trespass.
Theorists from the very early stages have recognised that there is a need for some central rule to control all individuals. Not to have any central law would, almost certainly, result in anarchy. In its earliest format, the need for a rule of law was established by Plato and Aristotle where they recognised the need for at least a degree of rule or there would be complete anarchy within society.
Without any form of law or rule the stronger and more cunning would effectively make the most of their position by exploiting the weak. It is almost universally accepted that someone needs to take overall control of a way that maintains democracy and prevents the weak from being exploited. For this central control to work, the power needs to be vested in some political and legislative authority.
Aristotle, in particular, recognised the importance of the role of this central figure. He debated at length whether this central control should be the rule of law or rule of men. His eventual conclusion was that a rule of law was necessary and that the central figure had to be in the form of some higher governmental authority. He concluded that a rule of law was essential as laws are produced as a result of reason and thought and not based on pure passion. Moreover, having one individual leader can clearly lead to tyranny or self-serving actions.
As the rules need to govern every adult individual, each individual should have a say in how these rules are established. Finally, a rotation of those in charge of the rule of law is desirable to ensure equality throughout. For these reasons, Aristotle concluded that a rule of law, operated in a democratic manner, is essential to ensure that rules are consistent and not arbitrary in the way they are both established and maintained.
Encroachment on the Rule of Law
Despite the universal recognition that the rule of law is both desirable and essential for the effective operation and governance of society, there have been several encroachments on the traditional rule of law. There is a body of thought that suggests the government has made several moves to encroach on the individual’s liberties.
One of the most notable of these is the removal of the right to a trial by jury in certain limited circumstances. In doing so, it is argued that the equality and fairness of the system is lost. Individuals are not judged by their peers but are instead dictated to by a higher authority.
Another area that has faced criticism is the way in which the secret service operates and, in particular, the Official Secrets Act and related gagging orders that have been put on certain individuals. Clive Ponting, who was a civil servant during the Falklands War, was gagged and prevented from speaking about the activities of the government, during this time.
It is argued that this encroachment on individual liberties, to the extent that it is necessary to protect the greater good, should not be seen as a breaking of the overall essence of the rule of law. Although these governmental powers are seen as overpowering the individual’s rights, it is also argued that these encroachments would not in the normal course of daily activities come into contact with these encroachments.
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Similarly, it is also argued that governmental bodies such as the secret services are overseen by independent bodies and, therefore, are not able to act in a way that is arbitrary or discriminatory.
Based on this, it can be concluded that whilst the rule of law is sometimes bent to accommodate the needs of the public as a whole, it cannot be carried out in an arbitrary way. Further, there are checks and balances in place to make sure that no single body exercises too much power over another.
The Role of Customs
One element of the rule of law which has to be considered when determining how the rules are established and how general customs should be dealt with in the creation of such laws is that of customary practice. This is particularly difficult as customs vary depending on regions, religions and even social classes and are therefore very difficult to control or legislate to take account of. Nevertheless, it should be noted that customs do not create laws, as such; they are simply used by judges when applying the law, which can at times result in an arbitrary application of customs in relation to the rule of law.
In order to be recognised as a law, a custom must meet very stringent tests including the fact that it must have existed since ‘time immemorial’, i.e. it must have been in existence since at least 1189 (in accordance with a statute enacted in 1275).
The custom must also be certain in terms of scope and application. The case of Wilson v Willes held the customary right to remove as much turf as was necessary from the manor common land. It was held that this custom was not sufficiently certain to be considered a valid law, as it was not clear what limits there were on the amount of turf.
Other requirements include the locality of the custom as customs are only ever applied on a local and not national basis. They must have been consistently exercised and exercised as a right rather than an irregular whim. In short, the recognition of a custom as a legal rule is only applied in extreme circumstances and provided that it does not conflict with an existing law.
The Role of Morality
As established as early on as Aristotle’s works, the rule of man or general morality cannot be relied upon to provide the basis of legal structure for all individuals. Everyone has a different idea of what constitutes moral behaviour; to allow every individual to follow their own moral code would result in chaos and disorder. Whilst everyone has their own moral standards, most individuals recognise that there is a need for universal laws, even if they do not always fall in line with their own moral judgments.
The difficulty comes when there is no apparent overall benefit to the law in question. For example, where the act does not harm another and there is seemingly no common purpose then, under the rule of law, there should be no law preventing such actions. This has been the case with homosexuality which is now not considered to be illegal. There are other activities that are thought of as illegal but not immoral, by some at least, such as driving over the speed limit, smoking marijuana or filing a false tax return.
It is clear that although law and morality are interlinked, they are not directly and inextricably thought of as one. Despite this, individuals, on the whole will recognise that there is a need for a legal system and will consider it moral to follow these rules even if they do not fully agree with them.
Are Unjust Laws, Laws at all?
This differentiation between law and morality leads us to consider the ultimate question of whether the rule of law requires individuals to follow the law, even if it is manifestly unjust. Are individuals in fact obliged not to obey rules that they see as unjust as stated by Martin Luther King when he wrote from his jail cell in Birmingham, Alabama, stating ‘one has a moral responsibility to disobey unjust laws’?
Where an individual is governed by the rule of law but decides to break one of these laws as he views them as unjust, provided he accepts the resulting responsibility it can be said that he maintains his adherence to the rule of law. The rule of law states that he should be dealt with fairly and expediently and, therefore, spans a much greater remit than simply setting down the laws that must be followed.
As stated by Dworkin, simply because the rule seems to be unjust does not give any individual the right to believe that it is a law at all. It does, however, give individuals the right to be dealt with fairly if they choose not to follow such a rule.
The rule of law is an essential part of any democratic society. A central set of rules that everyone must follow is required to prevent arbitrary rule and, ultimately, total anarchy. Having said this, the rule of law does not simply lay down a set of rules and apply them tyrannically. The rule of law has a much wider scope and considers how the laws should be applied and adapted to deal with societal changes and local customs. It is this overall framework of rules tainted with a degree of political and judicial discretion that makes the rule of law an ongoing success in dealing with the vagaries of human nature.
Aristotle, Ethics Book V, in K.S. Chukkol, ‘Enforcement of Judgements Against Public Officers and the Institutions and the Rule of Law’, in Ayua (ed.), Law, Justice and the Nigerian Society (NIALS, Lagos 1995) p. 61
David Brink, ‘Legal Positivism and Natural Law Reconsidered’ (1985) The Monist 68 364–387
Ronald Dworkin, Taking Rights Seriously (paperback ed., Harvard University Press, Cambridge, Mass. 1978)
John Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford 1980)
Lon Fuller, The Morality of Law (revised ed., Yale University Press, New Haven & London 1969)
Robert George (ed.), Natural Law Theory: Contemporary Essays (Clarendon Press, Oxford 1992)
Matthew Kramer, ‘On the Moral Status of the Rule of Law’ (2004) Cambridge Law Journal 63: 65