THE ROLE OF

THE RULE OF LAW

with formulating the first statement of the rule of law in
English Law, it is to Professor A.V. Dicey that we generally
Ms HELEN GAMBLE turn for its explanation. Dicey saw the rule as comprising
Lecturer in Law, Australian National University three elements:
1. " It means . . . the absolute supremacy or predominance of
regular law as opposed to the influence of arbitrary power,
and excludes the existence of arbitrariness, of prerogative,
WHAT IS THE RULE OF LAW or even of wide discretionary authority on the part of the
The term, the rule of law, has been used by many people government. Englishmen are ruled by the law, and by the
to mean many things. At its broadest and least discriminating, law alone; a man may be punished for a breach of law, but
it is used as a political catch cry in the international arena to he can be punished for nothing else."
suggest the guarantee of fundamental political and civil rights 2. " It means equality before the law, or the equal subjection
of all classes to the ordinary law of the land administered
and the dinity of man. At this level "the rule of law is an ex­
by the ordinary law courts; the 'rule of law' in this case
pression of an endeavour to give reality to something which
excludes the idea of any exemption of officials or others
is not readily expressible."1
from the duty of obedience to the law which governs
This paper is not concerned with such a wide use of the
other citizens or from the jurisdiction of the ordinary
term. Rather it aims to discuss the rule of law as used by
courts."
English lawyers to describe the ideal to which the English
3. "With us the law of the constittution, the rules which in
(and Australian) systems of law and government should
foreign countries naturally form part of a constitutional
aspire. This is a much narrower concept which, it must be
code, are not the source but the consequence of the rights
admitted, can be used to support a system of oppressive and
of individuals, as defined and enforced by the courts; . . .
arbitrary power, but which is said to have its origins and to
the principles of private law have . . . by the action of the
have derived its aims from an entirely different philosophy.2
courts and Parliament so extended as to determine the
Professor Heuston gives a most attractive statement of the
position of the Crown and its servants; thus the constitu­
rule as it is used by English lawyers.3 tion is the result of the ordinary law of the land."4
STATEMENT OF THE RULE The positivists of the Twentieth Century have reduced
"On Sunday morning, November 10, 1607, there was a Dicey's statement of the rule of law to the following essen­
remarkable interview in Whitehall between Sir Edward Coke, tials:
Chief Justice of the Common Pleas and James I. . . .The "Stripped of all technicalities (the ideal of the rule of law)
question between them was whether the King, in his own means that government in all its actions is bound by rules
person, might take what causes he pleased from the deter­ fixed and announced beforehand — rules which make it
mination of the judges and determine them himself. This is possible to foresee with fair certainty how the authority will
what Coke says happened: "Then the King said that he use its coercive powers in given circumstances, and to plan
thought the law was founded upon reason and that he and one's individual affairs on the basis of this knowledge."5
others had reason as well as the Judges; to which it was This means in the area of criminal law, with which this
answered by me, that true it was that God had endowed His conference is most closely concerned, that:
Majesty with excellent science and great endowments of 1. The category of crimes should be determined by general
nature, but His Majesty was not learned in the laws of his rules of a more or less fixed character.
realm of England, and causes which concern the life, or in­ 2. A person should not be punished except for a crime which
heritance, or goods or fortunes of his subjects, are not to be falls within these general rules.
decided by natural reason but by the artificial reason and 3. Penal statutes should be strictly construed, so that no act
judgment of the law, which law is an act which requires long may be made criminal which is not clearly covered by the
study and experience before a man can attain to the cognis­ statutes.
ance of it and that the law was the golden metwand and 4. Penal laws should never have retrospective effect.6
measure to try the causes of the subjects, and which protect­
ed His Majesty in safety and peace: with which the King was DICEY'S CRITICS
greatly offended, and said, that then he should be under the Two sorts of attacks have been made on Dicey's formula­
law, which was treason to affirm, as he said: to which I said, tion of the rule of law. The first, and perhaps most trenchant,
that Bracton saith, quod Rex non debet esse sub momine sed is that the Dicean formulation is merely a reflection of the
Deo et lege'. . . . The King ought not to be under a man, non laissez-fairism of the Whig tradition in which Dicey was
debet esse sub homine, but under God and the law, sed sub working in the mid to late nineteenth century. Professor
Deo et lege." E.C.S, Wade, who wrote the introduction to Dicey's 10th
edition, put this criticism in the following way:
EXPLANATION OF THE RULE "It is indeed the principal ground of criticism of Dicey's
Although Bracton and Sir Edward Coke are accredited interpretation of the rule of law that it reflects the author's

27
attachment to the Whig tradition. Thus the supremacy of the tain themselves. On this view we may challenge the validity
legislature, which by 1885 had become a representative legis­ of a regulation because it exceeds the guidelines laid down in
lature in fact as well as in name, the control by Parliament of the primary Act and we may expect that the courts will give
the armed forces, the protection afforded by an independent a correct interpretation to the principles of the common
judiciary against the excesses of administrative officials, and law,10 but we cannot complain when new details are added
the remedies of the common law against illegal acts as being to fill out the principles laid down by Parliament.11
the means whereby the political doctrines of free discussion If we accept this description of the rule of law compliance
and free association are reserved, are all in keeping with this with it in Australia is high in the area of criminal law. Each
tradition and therefore find their place in the analysis. . . . jurisdiction has a system of statutes which lays down the
The abandonment of the principle of laissez faire has altered general principles on which the criminal law is founded. The
the nature of much of our law. A system of law, which like detail is then fairly thoroughly explained in the regulations
the common law is based on the protection of individual which implement these statutes and in the many reported
rights, is not readily comparable with legislation which has decisions of the courts. Theoretically, the law is in existence
for its object the welfare of the public, or a large section of and discoverable before a person undertakes a planned course
it, as a w h o le /'' of action.
Wade relates his criticism to the fact that today the legis­ 2. Wade and Administrative Discretion
lature has delegated much of its authority in day to day Professor Wade's criticism are perhaps less easily answered.
decision making to a wide range of administrative agencies.
An example of something which is important in Australia
He accepts that these agencies must work within the law and
today may be used to illustrate. The Social Service Act 1947
are governed by it, but points out that their regulation
(Cth.) gives the Minister of Social Services, and through him
depends upon the fundamental principle of the supremacy of
the officers of his Department, full power to implement the
parliament and not on the more limited constitutional con­
Commonwealth Government's policies in relation to the pay­
cept of the rule of law. Acceptance of the principle of
supremacy of parliament imports an acceptance of the rule ment of pensions and other benefits. The Act lays down, in
of law but it does not guarantee it for the principle of general terms, the people who are intended to benefit but it
supremacy of parliament relies on our faith in a democratic leaves the identification of those people, and the circum­
form of government, while the rule of law in Dicean terms, stances in which they are to be paid, very much to the dis­
demands that the courts have the power "to restrain the cretion of the Minister. Viewed in the light of a decision such
illegal excesses of the administration". A system of govern­ as Green v. Daniels12 it is difficult to accommodate this
ment by the administration, although vested with its powers scheme within the definition of the rule of law expounded
by the parliament, is not inconsistent with an arbitrary above.
regime. Dicey's formulation of the rule of law, depending as True, there is a general Act of Parliament which lays down
it does on review by an independent judiciary, is seen as guar­ guidelines and which grants the power to fill in the detail
anteeing the enforcement of the principles he espouses. required for its implementation. There are also published reg­
Wade's conclusion is therefore " it is only, where consitution- ulations to which the public may turn to discover this detail.
al law is concerned, in that small but vital sphere where But the decision in Green indicates that knowledge of the
general principles and of the details of the regulations does
of person and of speech are guarded that (the rule of law)
not necessarily guarantee access to all the information neces­
meams the rule of the common law".8
sary to pursue a claim for social security benefits. The
Others have attacked the Dicean formulation of the rule
manner in which the Act and the Regulations are administer­
in this area of civil liberties. Sir Ivor Jennings refers to Pro­
fessor Hall's four prerequisites for the operation of the rule ed is only fully discoverable from the Departmental manual
in the area of criminal law and agrees with Hall that the rule and from internal Departmental instructions. As these are
of law was not being closely observed during the 1920s and not available to the public, it is difficult to accommodate the
'30s. when they were writing.9 These criticisms are examined scheme within the accepted confines of the rule of law.
first to assess whether there is greater compliance with Hall's The exercise of such discretion is justified by Dicean
four requirements in Australia in the 1980s than there was in theorists on the basis that the decisions made by those exer­
England and the USA earlier in the Century. cising the discretion can be reviewed in court. In essence the
Green case falls within this model. A challenge was taken to
the exercise of the administrative discretion and the matter
OBSERVANCE OF THE RULE OF LAW was taken before a court. The one aspect of the case which
1. Hall's Requirements and the Criminal Law threatens its accommodation within the rule of law is that
Professor Hall's four requirements can be reduced to a until the matter came before the court, Karen Green was
statement reminiscent of the positivist view: That we should denied access to the internal instruction manual on which the
be able to discover whether our actions are subject to a penal decision had been taken. In this respect it could be alleged
sanction before we set out on the course of conduct contem­ that there was no compliance with the rule of law since the
plated. In Dicey's terms, a man should only be punishable for appropriate principles of the law were not discoverable
a breach of the law and for nothing else. before the cause of action was commenced. Although in
It is tempting to divide consideration of this question into general terms the case can be reconciled with the existence
two parts. To look first at those laws which are made by of the rule of law, when viewed more critically it is seen to
Parliament, directly through statutes or indirectly though fall outside the spirit of the rule if not its letter.13
regulations authorised by those statutes. And secondly, to
•ook at the common law, conceived of as created by the DISSATISFACTION WITH THE LEGAL DEFINITION
couirts acting as-legislators. These two parts of the question OF THE RULE
have been reconciled by legal philosophers however as simply So far the analysis of the rule of law has been confined
beinig two aspects of the same question. Dicey's rule of law within the narrow limits imposed by legal philosophers. That
does not require that Parliament enacts all laws. Rather the their conceptions of the rule do not accord with the views of
docttrine requires that Parliament lays down the general prin­ many members of the general public, and some members of
ciples within which those who create the detail should con­ the profession, is clear.14

29
 A tew aspects ot the public view of the meaning of the location of our system of government if we do not act in
rule should be mentioned. First, the relevance of the rule of support of its institutions. Thus, this type of appeal to the
law, as defined, to situations in which a member of the pub­ rule of law is mot often heard in connection with statements
lic must pursue his claims against the administration. which indicate that there has been an increase in the rate of
1. Administrative Discretion reported crime or in situations in which a proportion of the
community is refusing to respect a particular law. In these
The example of the exercise of discretion by the Depart­
circumstances members of the public are urged to uphold the
ment of Society Services given above, is probably a sufficient rule of law by offering assistance to those assigned to enforce
demonstration of the possible inadequacies of the rule of law the law and by ensuring that little or no support is given to
in this field. Other examples, more relevant to the purposes the law-breakers.
of this conference, can be given. The discretion exercised by Dicey's formulation of the rule of law has nothing to offer
parole boards throughout Australia does not seem to meet in relation to this use of the term for the Dicean principle
the strict requirements of the rule of law. The reasons given presupposes a system of law and government which is sup­
for the boards' decision are not open to public scrutiny and ported by its subjects. The answers to the questions raised by
therefore cannot be challenged in court, and it is perhaps an the use of the term in this way lie in principles of moral phil­
inadequate explanation to rely on the prisoner's status as a osophy which are outside the scope of this paper.19
convicted offender who is serving a sentence imposed by a
FOOTNOTES
court. It is true that his sentence has been set by judicial pro­
cess but it is perhaps superficial to view the proceedings of 1. J .A . J o /o w ic z , Secretary of the Colloquium, The Rule of Law as
Understood in the West', (Chicago University 1957) extracted in
the parole boards as resulting in a fortuitous foreshortening Wade's introduction to Dicey, Introduction to the Study of the
of the penalty extracted by law. Law of the Constitution (10th ed., Macmillan & Co., 1962) p.
cix. Such a use of the term has been called a "perversion of the
2. Access to Legal Remedies doctrine of the rule of law" by the philosopher Joseph Raz, The
The question of public access to the law is also of rele­ Rule of Law and Its Virtue (1977) 93 L.Q.R. 195.
vance when considering the relevance of the rule of law. The 2. Raz, op. cit. pp. 200, 202, 205; Rawls, A T h e o r y o f J u s tic e
Dicean formulation depends upon the general availability of (Oxford University Press, 1972) p. 236; Hermann, The Fallacy
legal remedies but few would contend that such remedies are of Legal Procedure as Predominant over Substantive Justice,
(1974) 23 D e P a u l L.R. 1408, 1409.
readily available to every member of the public. 3. R . F . V . H e u s t o n , Essays in C o n s t it u t io n a l L a w (2nd ed. Stevens
The systems of legal aid which exist throughout Australia and Sons, 1964) pp. 32-33 quoting from P r o h ib it io n s D e l R o y
allow some reason for self satisfaction in this area but poverty (1607) 12 Co. Rep. 63.
and ignorance remain two of the most obvious causes of 4. A . V . D ic e y , The Law of the Constitution, op. cit., pp. 202-203.
failure to pursue legal remedies.15 5. F . A . H a y e k , The Road to Serfdom ( U n iv e r s it y C h ic a g o Press
1944) p.54; Raz, op.cit., p.195.
3. Law Reform
6. These are the four prerequisites which Jerome Hall would
The slow pace at which law reform takes place in our demand of a system of criminal law which complied with the
community has also been identified as an example of where rule of law. H a ll, N u ll a P o e n a S in e L e g e (1937) 47 Y a le L a w
the "rhetoric and the reality" depart.16 While the statute J o u r n a l p.165, and see R a w ls , op. cit. pp.237-39.

books remain cluttered with the offences of past ages it is 7. E .C .S . W a d e , op.cit., pp. cii-ciii.

thought to be almost dishonest to speak of a Parliament 8. W a d e , op.cit., p. civ, and see H e r m a n n , op.cit. pp.1419-20 who
points out that the Nazi legal system satisfied the legal positivists'
which lays down the general principles by which we are to be requirements for valid rule of law.
governed. On many occasions these ancient crimes are undis- 9. J e n n in g s , T h e L a w a n d T h e C o n s t it u t io n (5th ed. U n iv e r s it y o f
coverable except by a patient historian and when discovered L o n d o n Press, 1972) pp.51-52; H a l l, op.cit.
are incompatible with current attitudes. 10. The common law is regarded as always having been in existence.
The task of the courts is to discover it and give it a correct inter­
4. Sentencing Policies pretation.
The problem of outmoded law becomes of more general 11. "It is one of the important principles of the doctrine that the
importance when we examine the means available to the making of particular laws should be guided by open and relative­
courts to punish those convicted of crimes. In Goldberg's ly stable general rules." R a z , op.cit. p.198. The American realist
school of legal philosophy would challenge this concept of the
words those convicted of crimes "may be committed to an function of the judiciary as they regard judicial decision-making
antiquated prison to spend years in confined and destructive as something akin to acting on whim, the law produced as noth­
idleness, subject perhaps to ill-trained guards and brutalizing ing more than an "orderly collection of . . . decisions." L . N e w ­
to n , The Rule of Law and the Appeal to Community Standards
fellow inmates, and governed by a set of arbitrary and sub­ (1976) 21 A m e r ic a n J o u r n a l o f J u r is p r u d e n c e 96.
jective rules which can produce additional punishments sub­ 12. (1977) 13 A.L.R. 1, at pp.7-8, although it is to be noted that the
ject to no fair review.".17 decision of Stephen, J. in the High Court is in accordance with
Many more illustrations of the "disparity between legal the rule of law.
rhetoric and reality" could be given, but instead the oppor­ 13. See editorial comment on G re e n v. D a n ie ls (1977) 51 A.L.J.
tunity will be taken to raise what is perhaps the most conten­ 227, and C a r n e y , Unemployment Benefits, Three Legal Issues
tious aspect of the rule of law, that is, its connection with (1977) 2 L e g a l S e rv ic e B u ll e t i n 365.
law and order. 14. Raz recognises this in his article, op.cit. p.197 and see C. J o h n ­
s o n , The Rule of Law and The Closure of a Legal System (1973)
LAW AND ORDER AND THE RULE OF LAW 18 A m e r ic a n J o u r n a l o f J u r is p r u d e n c e p.38.
The most common evocation of the rule of law is that 15. See the comments of A .J . G o ld b e r g , a former justice of the U.S.
Supreme Court, The Role of Law in a Free Society (1973) 7
made by those who wish to use its principles in support of a G e o rg ia L a w R e v ie w 403 at p.407.
call for law and order.18 Used in this way the term is usually 16. G o ld b e r g , op.cit. pp.407-408.
combined with a- plea for members of the public to obey the 17. Loc. cit.
law, or to uphold the rule of law. 18. L o r d W i d g e r y , then Lord Chief Justice of England, The Rule of
This use of the term has no technical definition and its Law (1976) 51 N e w Y o r k U n iv e r s it y L a w R e v ie w 365.
relationship to the Dicean formulation is remote. What those 19. R o n a ld D w o r k i n takes up the question of whether citizens have
who ask us to uphold the rule of law are suggesting is that moral rights against their governments in T a k in g R ig h ts S e r io u s ly
there has been (or is likely to be) some fundamental dis­ (Duckworth, 1977).

31