Kate SlackThe Rule of Law: A Doctrine
July 4th 2010 06:05
A credit to their prophetic intellect Australia’s constitutional framers realized how fundamental the rule of law is and adopted its characteristics by embedding them into Australia’s liberal democracy. In Australia, the rule of law is so engrained that many take it for granted, but its existence ensures three highly important values.
“First, it is thought to curb the power of government; to prevent it from becoming absolute. Second, it is thought to protect the rights, and particularly the liberties of the citizen. Third, it promotes personal autonomy in that individuals can predict the circumstances when governments will interfere with their lives and thus plan their lives accordingly.” (Bottomley, Stephen and Parker, Stephen, Law in Context 2nd ed, NSW, Australia, The Federation Press, 1997, p47
In order to ensure these values are maintained, the rule of law stands supported by a number of indispensable bases, breach of which have dire consequences for the state of Australia’s liberal democracy.
In order for the rule of law to ensure peace, order and freedom, laws must be made via the democratic process and be publicly promulgated . “The requirement of promulgation means that governments must not act according to secret laws, for everyone must be able to know what is required of them and what they may do.” (Bottomley and Parker above at p49) The rule of law also requires clarity and specificity: “the law should be intelligible and give guidance.” (Bottomley and Parker above at p50) The laws must also be administered publicly and applied universally and impartially . A.V Dicey, a 19th century constitutional scholar, often commented on
“the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, [arguing that] Englishman are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens from the jurisdiction of the ordinary tribunals.” ('The Role of the Legal Profession in the Rule of Law' above at p7-11)
While overarching laws hailed as solutions to the risks posed by oppressors may make a majority feel safer, if they are partial against a minority, a breach of the rule of law has occurred. “We as a community, cannot justify seeking our own advantage if that advantage is to be underwritten by the visiting of injustice on an individual, or on a few, or on a minority.” (Hon Sir Brennan, G, 'Law for All: Justice for Each' paper presented at the Law and Justice Foundation Justice Awards Dinner, Sydney, Australia, 2007, p1-2) A limitation does however exist. For in a society where freedom is trumpeted a transaction occurs between the state offering protection, and its citizens who are asked to relinquish a piece of their freedom in exchange for that protection. Therefore,
“A law which imposes duties or liabilities restrictive of freedom must be justified by the need to protect or advance the common good. The duties or liabilities must be precisely targeted to protect the common good, they must be proportionate to the damage that would be reasonably apprehended if there were no such law and they must refrain from inflicting individual injustice.” (Hon Sir Brennan, G above at p 2)
A fine line therefore exists between whether a law will be considered unjust on the basis that it is partial to a minority and a law that may prejudice some but is warranted in the name of the common good. It is also essential for the maintenance of the rule of law that justice be done according to law . Without these necessary hallmarks, the rule of law can not effectively fulfil its crucial role.
“First, it is thought to curb the power of government; to prevent it from becoming absolute. Second, it is thought to protect the rights, and particularly the liberties of the citizen. Third, it promotes personal autonomy in that individuals can predict the circumstances when governments will interfere with their lives and thus plan their lives accordingly.” (Bottomley, Stephen and Parker, Stephen, Law in Context 2nd ed, NSW, Australia, The Federation Press, 1997, p47
In order to ensure these values are maintained, the rule of law stands supported by a number of indispensable bases, breach of which have dire consequences for the state of Australia’s liberal democracy.
In order for the rule of law to ensure peace, order and freedom, laws must be made via the democratic process and be publicly promulgated . “The requirement of promulgation means that governments must not act according to secret laws, for everyone must be able to know what is required of them and what they may do.” (Bottomley and Parker above at p49) The rule of law also requires clarity and specificity: “the law should be intelligible and give guidance.” (Bottomley and Parker above at p50) The laws must also be administered publicly and applied universally and impartially . A.V Dicey, a 19th century constitutional scholar, often commented on
“the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, [arguing that] Englishman are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens from the jurisdiction of the ordinary tribunals.” ('The Role of the Legal Profession in the Rule of Law' above at p7-11)
While overarching laws hailed as solutions to the risks posed by oppressors may make a majority feel safer, if they are partial against a minority, a breach of the rule of law has occurred. “We as a community, cannot justify seeking our own advantage if that advantage is to be underwritten by the visiting of injustice on an individual, or on a few, or on a minority.” (Hon Sir Brennan, G, 'Law for All: Justice for Each' paper presented at the Law and Justice Foundation Justice Awards Dinner, Sydney, Australia, 2007, p1-2) A limitation does however exist. For in a society where freedom is trumpeted a transaction occurs between the state offering protection, and its citizens who are asked to relinquish a piece of their freedom in exchange for that protection. Therefore,
“A law which imposes duties or liabilities restrictive of freedom must be justified by the need to protect or advance the common good. The duties or liabilities must be precisely targeted to protect the common good, they must be proportionate to the damage that would be reasonably apprehended if there were no such law and they must refrain from inflicting individual injustice.” (Hon Sir Brennan, G above at p 2)
A fine line therefore exists between whether a law will be considered unjust on the basis that it is partial to a minority and a law that may prejudice some but is warranted in the name of the common good. It is also essential for the maintenance of the rule of law that justice be done according to law . Without these necessary hallmarks, the rule of law can not effectively fulfil its crucial role.
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