Constitutional Law

Ian D. Loveland

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351731485
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This title was first published in 2000: This volume of essays explores a number of fundamental constitutional law questions in a variety of historical and jurisdictional contexts. The contributions focus on the role to be played by courts and legal principles in the resolution of major political controversies and on the progressive development of constitutional jurisprudence in countries sharing a broadly common law legal tradition. The guiding theme pervading the collection is an attempt to measure the legitimacy of judicial (in-)activism when courts are faced with difficult political choices on matters such as slavery, internment, racism and voting rights and radical economic policies and are also confronted with the requirement to attach concrete meanings to such abstract concepts as the separation of powers and the rule of law.

Part I
General Principles

[1]
The Rule of Law and Its Virtue^*

F. A. HAYEK has provided one of the clearest and most powerful formulations of the ideal of the rule of law: “stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.”¹ At the same time the way he draws certain conclusions from this ideal illustrates wie of the two main fallacies in the contemporary treatment of the doctrine of the rule of law: The assumption of its overriding importance. My purpose is to analyse the ideal of the rule of law in the spirit of Hayek’s quoted statement of it and to show why some of the conclusions which he drew from it cannot be thus supported. But first we must be put on our guard against the other common fallacy concerning the rule of law.

Not uncommonly when a political ideal captures the imagination of large numbers of people its name becomes a slogan used by supporters of ideals which bear little or no relation to the one it originally designated. The fate of “democracy” not long ago and of “privacy” today are just two examples of this familiar process. In 1959 the International Congress of Jurists meeting in New Delhi gave official blessing to a similar perversion of the doctrine of the rule of law.

“The function of the legislature in a free society under the Rule of Law is to create and maintain the conditions which will uphold the dignity of man as an individual. This dignity requires not only the recognition of his civil and political rights but also the establishment of the social, economic, educational and cultural conditions which are essential to the full development of his personality.”²

The report goes on to mention or refer to just about every political ideal which has found support in any part of the globe during the post-war years.

If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that good should triumph. The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. That much is common ground. It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man. A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies. This does not mean that it will be better than those western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law.

Given the promiscuous use made in recent years of the expression “the rule of law” it is hardly surprising that my claim will alarm many. We have reached the stage in which no purist can claim that truth is on his side and blame the others of distorting the notion of the rule of law. All that I can claim for my account is, first, that it presents a coherent view of one important virtue which legal systems should possess and, secondly, that it is not original, that I am following in the footsteps of Hayek and of many others who understood “the rule of law” in similar ways.

1. The Basic Idea

“ The rule of law” means literally what it says: The rule of the law. Taken in its broadest sense this means that people should obey the law and be ruled by it.³ But in political and legal theory it has come to be read in a narrower sense, that the government shall be ruled by the law and subject to it. The ideal of the rule of law in this sense is often expressed by the phrase “government by law and not by men.” No sooner does one use these formulae than their obscurity becomes evident. Surely government must be both by law and by men. It is said that the rule of law means that all government action must have foundation in law, must be authorised by law. But is not that a tautology? Actions not authorised by law cannot be the actions of the government as a government. They would be without legal effect and often unlawful.

It is true that we can elaborate a political notion of government which is different from the legal one: government as the location of real power in the society. It is in this sense that one can say that Britain is governed by The City or by die trade unions. In this sense of government it is not a tautology to say that government should be based on law. If the trade union ruling a country breaks an industrial relations law in order to impose its will on the parliament or if the President or the F.B.I. authorise burglaries and conspire to pervert justice they can be said to violate the rule of law. But here the rule of law is used in its original sense of obedience to law. Powerful people and people in government just like anybody else should obey the law. This is no doubt correct, and yet does it exhaust the meaning of the rule of law? There is more to the rule of law than the law and order interpretation allows. It means more even than law and order applied to the government. I shall proceed on the assumption that we are concerned with government in the legal sense and with the conception of the rule of law which applies to government and to law and is no mere application of the law and order conception.

The problem is that now we are back with our initial puzzle. If government is, by definition, government authorised by law the rule of law seems to amount to an empty tautology, not a political ideal.

The solution to this riddle is in the difference between the professional and the lay sense of law. For the lawyer anything is the law if it meets the conditions of validity laid down in the system’s rules of recognition or in other rules of the system.⁴ This includes the constitution, parliamentary legislation, ministerial regulations, policeman’s orders, the regulations of limited companies, conditions imposed in trading licences, etc. To the layman the law consists only of a subclass of these. To him the law is essentially a set of open, general and relatively stable laws. Government by law and not by men is not a tautology if “law” means general, open and relatively stable law. In fact the danger of this interpretation is that the rule of law might set too strict a requirement, one which no legal system can meet and which embodies very little virtue. It is humanly inconceivable that law can consist only of general rules and it is very undesirable that it should. Just as we need government both by laws and my men, so we need both general and particular laws to carry out the jobs for which we need the law.

The doctrine of the rule of law does not deny that every legal system should consist of both general, open and stable rules (the popular conception of law) and particular laws (legal orders), an essential tool in the hands of the executive and the judiciary alike. As we shall see, what the doctrine requires is the subjection of particular laws to general, open and stable ones. It is one of the important principles of the doctrine that the making of particular laws should be guided by open and relatively stable general rules.

This principle shows how the slogan of the rule of law and not of men can be read as a meaningful political ideal. The principle does not, however, exhaust the meaning of the rule of law and does not by itself illuminate the reasons for its alleged importance. Let us, therefore, return to the literal sense of the “rule of law.” It has two aspects: (1) that people should be ruled by the law and obey it, and (2) that the law should be such that people will be able to be guided by it. As was noted above, it is with the second aspect that we are concerned: the law must be capable of being obeyed. A person conforms with the law to the extent that he does not break the law. But he obeys the law only if part of his reason for conforming is his knowledge of the law. Therefore, if the law is to be obeyed it must be capable of guiding the behaviour of its subjects. It must be such that they can find out what it is and act on it.

This is the basic intuition from which the doctrine of the rule of law derives: the law must be capable of guiding the behaviour of its subjects. It is evident that this conception of the rule of law is a formal one. It says nothing about how the law is to be made: by tyrants, democratic majorities or any other way. It says nothing about fundamental rights, about equality or justice. It may even be thought that this version of the doctrine is formal to the extent that it is almost devoid of content. This is far from the truth. Most of the requirements which were associated with the rule of law before it came to signify all the virtues of the state can be derived from this one basic idea.

2. Some Principles

Many of the principles which can be derived from the basic idea of the rule of law depend for their validity or importance on the particular circumstances of different societies. There is little point in trying to enumerate them all, but some of the more important ones might be mentioned:

(1) All laws should be prospective, open and clear. One cannot be guided by a retroactive law. It does not exist at the time of action. Sometimes it is then known for certain that a retroactive law will be enacted. When this happens retroactivity does not conflict with the rule of law (though it may be objected to on other grounds). The law must be open and adequately publicised. If it is to guide people they must be able to find out what it is. For the same reason its meaning must be clear. An ambiguous, vague, obscure or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it.

(2) Laws should be relatively stable. They should not be changed too often. If they are frequently changed people will find it difficult to find out what the law is at any given moment and will be constantly in fear that the law has been changed since they last learnt what it is. But more important still is the fact that people need to know the law not only for short-term decisions (where to park one’s car, how much alcohol is allowed in duty free, etc.) but also for longterm planning. Knowledge of at least the general outlines and sometimes even of details of tax law and company law are often important for business plans which will bear fruit only years later. Stability is essential if people are to be guided by law in their longterm decisions.⁵

Three important points are illustrated by this principle. First, conformity to the rule of law is often a matter of degree not only when the conformity of the legal system as a whole is at stake, but also with respect to single laws. A law is either retroactive or not, but it can be more or less clear, more or less stable, etc. It should be remembered, however, that by asserting that conformity to the principles is a matter of degree it is not meant that the degree of conformity can be quantitatively measured by counting the number of infringements or some such method. Some infringements are worse than others. Some violate the principles in a formal way only which does not offend against the spirit of the doctrine. Secondly, the principles of the rule of law affect primarily the content and form of the law (it should be prospective, clear, etc.) but not only them. They also affect the manner of government beyond what is or can usefully be prescribed by law. The requirement of stability cannot be usefully subject to complete legal regulation. It is largely a matter for wise governmental policy. Thirdly, though the rule of law concerns primarily private citizens as subject to duties and governmental agencies in the exercise of their powers (on which more below) it is also concerned with the exercise of private powers. Power-conferring rules are designed to guide behaviour and should conform to the doctrine of rule of law if they are to be capable of doing so effectively.

(3) The making of particular laws (particular legal orders) should be guided by open, stable, clear and general rules. It is sometimes assumed that the requirement of generality is of the essence of the rule of law. This notion derives (as noted above) from the literal interpretation of “the rule of law” when “law” is read in its lay connotations as being restricted to general, stable and open law. It is also reinforced by a belief that the rule of law is particularly relevant to the protection of equality and that equality is related to the generality of law. The last belief is, as has been often noted before, mistaken. Racial, religious and all manner of discrimination is not only compatible but often institutionalised by general rules:

The formal conception of the rule of law which I am defending does not object to particular legal orders as long as they are stable, clear, etc. But of course particular legal orders are mostly used by government agencies to introduce flexibility into the law. A police constable regulating traffic, a licensing authority granting a licence under certain conditions, all these and their like are among the more ephemeral parts of the law. As such they run counter to the basic idea of the rule of law. They make it difficult for people to plan ahead on the basis of their knowledge of the law. This difficulty is overcome to a large extent if particular laws of an ephemeral status are enacted only within a framework set by general laws which are more durable and which impose limits on the unpredictability introduced by the particular orders.

Two kinds of general rules create the framework for the enactment of particular laws: Those which confer the necessary powers for making valid orders and those which impose duties instructing the power-holders how to exercise their powers. Both have equal importance in creating a stable framework for the creation of particular legal orders.

Clearly, similar considerations apply to general legal regulations which do not meet the requirement of stability. They too should be circumscribed to conform to a stable framework. Hence the requirement that much of the subordinate administrative law-making should be made to conform to detailed ground rules laid down in framework laws. It is essential, however, not to confuse this argument with democratic arguments for the close supervision of popularly-elected bodies over law-making by non-elected ones. These further arguments may be valid but have nothing to do with the rule of law, and though sometimes they reinforce rule of law type arguments, on other occasions they support different and even conflicting conclusions.

(4) The independence of the judiciary must be guaranteed. It is of the essence of municipal legal systems that they institute judicial bodies charged, among other things, with the duty of applying the law to cases brought before them and whose judgments and conclusions as to the legal merits of those cases are final. Since just about any matter arising under any law can be subject to a conclusive court judgment it is obvious that it is futile to guide one’s action on the basis of the law if when the matter comes to adjudication the courts will not apply the law and will act for some other reasons. The point can be put even more strongly. Since the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly.⁶ Otherwise people will only be able to be guided by their guesses as to what the courts are likely to do—but these guesses will not be based on the law but on other considerations.

The rules concerning the independence of the judiciary—the method of appointing judges, their security of tenure, the way of fixing their salaries and other conditions of service—are designed to guarantee that they will be free from extraneous pressures and independent of all authority save that of the law. They are, therefore, essential for the preservation of the rule of law.

(5) The principles of natural justice must be observed. Open and fair hearing, absence of bias and the like are obviously essential for the correct application of the law and thus, through the very same considerations mentioned above, to its abi...

Table of contents

• Cover
• Half title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I General Principles
• 1 Joseph Raz (1977), ‘The Rule of Law and its Virtue’, Law Quarterly Review, 3, pp. 195–211.
• 2 Herbert Wechsler (1959), ‘Toward Neutral Principles of Constitutional Law’, Harvard Law Review, 73, pp. 1–35.
• Part II On Slavery
• 3 Edward S. Corwin (1911), ‘The Dred Scott Decision, in the Light of Contemporary Legal Doctrines’, American Historical Review, pp. 52–69.
• 4 William M. Wiecek (1974), ‘Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World’, University of Chicago Law Review, 42, pp. 86–146.
• Part III On Social and Economic Rights Prior to the Keynesian Orthodoxy
• 5 Roscoe Pound (1909), ‘Liberty of Contract’, Yale Law Journal, 18, pp. 454–87.
• 6 Harold J. Laski (1926), ‘Judicial Review of Social Policy in England’, Harvard Law Review, 40, pp. 832–48.
• Part IV On the Liberty of the Person in time of War
• 7 Eugene V. Rostow (1945), ‘The Japanese American Cases - A Disaster’, Yale Law Journal, 54, pp. 489–533.
• 8 R.F.V. Heuston (1970), ‘Liversidge v. Anderson in Retrospect’, Law Quarterly Review, 86, pp. 33–68.
• Part V The South(Ern) African Crisis of the 1890S and 1950S
• 9 L.M. Thompson (1954), ‘Constitutionalism in the South African Republics’, Butterworths South African Law Review, pp. 49–72.
• 10 Denis V. Cowen (1953), ‘The Entrenched Sections of the South Africa Act: Two Great Legal Battles’, South African Law Journal, pp. 238–65.
• Part VI Changing Perceptions of the Sovereignty of the United Kingdom Parliament
• 11 H.W.R. Wade (1955), ‘The Basis of Legal Sovereignty’, Cambridge Law Journal, 14, pp. 172–97.
• 12 P.P. Craig (1991), ‘Sovereignty of the United Kingdom Parliament after Factortame’, Yearbook of European Law, pp. 221–55.
• Part VII Canada: A Via Media Between British and American Principle?
• 13 T.R.S. Allan (1986), ‘Law, Convention, Prerogative: Reflections Prompted by the Canadian Constitutional Case’, Cambridge Law Journal, 45, pp. 305–20.
• Part VIII Freedom of Expression and Political Accountability
• 14 Harry Kalven, Jr (1964), ‘The New York Times Case: A Note on ”The Central Meaning of the First Amendment’„, The Supreme Court Review, pp. 191–221.
• 15 George Williams ( 1995), ‘Engineers is Dead, Long Live the Engineers!’, Sydney Law Review, 17, pp. 62–87.
• Name Index