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Saturday, 14 July 2018

The Rule of Law

It's been said that there are as many definitions of the rule of law as there are lawyers, or, at least, constitutional lawyers. But everyone agrees it is a really important thing to have.

As I understand it, the principle of the rule of law is that everyone and anyone is subject to the same framework of justice and expected to live up to the same set of rules. That framework and those rules, obviously, are the Law. And because everyone and anyone is subject to the Law, we can say it rules.

So what about some other definitions of the rule of law? Being a layman, I shall compare my idea with Wikipedia:
The rule of law is the "authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes".[2]
That seems... pretty much the same. It's got a very important bit in it about "publicly disclosed" (which I take to mean no secret courts and secret laws) and that's what I mean by "same," but it's probably important to explicitly state that transparency is part of the rule of law.

How about the misinterpretation of Magna Carta? The Rule of Law is often traced back to Magna Carta you see..
XXIX. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.[228]
The problem with taking this to mean a rule of law was established by Magna Carta is that "freeman" had a very specific meaning in the 13th Century and the meaning was quite different to that we have now where it basically just refers to anyone. This is a generally important point, though. The way the Law works is that it is written and produced by a legislative body, it is followed by agents and the executive (part of government) and it is enforced by a judiciary. The process of enforcement generally means having to decide what a law means... and there is a fair amount of scope there. In New Zealand these interpretations are meant to follow what is termed the purposive approach:
5 Ascertaining meaning of legislation
  • (1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.
  • (2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.
  • (3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.
I say meant but I really have absolutely no reason to imagine that statutory interpretation doesn't follow this process in practice. Except, I was never really able to figure out how a person could be said to get off on a technicality. If you're reading with the purposive approach, the plain meaning of the text above is saying that the Spirit of the law is, in fact, the Law. Hence, no such thing as a technicality. But I'm probably confused on this point because I did just the one Comlaw paper and this seems rather more appropriate to the questions surely treated in an actual Law education. The real problem (with laws having to be read/interpreted to exist), therefore, is this bit (handy dandy quote from a PDF I've read basically none of that I found literally five minutes ago):
The constitutional importance of individuals being able to understand the law, and order their affairs accordingly, is a key tenet of any legitimate legal system. Lord Bingham relates it to the rule of law which he says requires, among other things, that the law be accessible and so far as possible, intelligible, clear and predictable.8
Unlike a lot of people I really don't think footnotes are optional, so I'll quote that too:
Thomas Bingham “The Rule of Law” (2007) 66 CLJ 67. Professor Lon Fuller, an American jurist, went so far to say that “law” would not be law if it was so unclear that it was impossible to understand: Lon Fuller Morality of Law (New Haven, Yale University Press, 1969). There is an extended discussion of Fuller’s eight criteria of law at 46–91.
Only lawyers could actually say these sorts of things. I think I'm a pretty smart dude but I really couldn't make head nor tail out of British citizenship law. And, similarly, the whole reason why lawyers exist is because the Law requires its own education. And that happens because the Law is its own (very narrow, if you ask me) way of thinking. That's been obvious for hundreds of years. I suppose, charitably speaking, what they mean is that you've got to be able to get a sense of what it says... which is certainly the case with our quote from Magna Carta (which, to be clear, is to a Medievalist a contract not a constitution, to a lawyer  a constitution and to the historians of Early Modern England it's something in between). But it must be said that the purposive approach ought to make the plain meaning of our quote from Magna Carta mean something actually opposed to the legal meaning. Do we have, therefore, the Rule of Law when we've got old laws sitting around?

This is where I think I will move from a half-arsed attempt at legal theorising to making an equally half-arsed attempt at legal-political theorising.

In New Zealand we have a government (the executive) which is part of parliament (the legislature) that we hold to be sovereign. That is to say that there is nothing one parliament can do to permanently bind another parliament and there is nothing the courts can do strike down legislation, at least laws that have been enacted correctly.

To my mind, if parliamentary proceedings have not been followed it is a nonsense to say that parliament exists and hence anything that such a "parliament" did isn't really a law (because it wasn't a parliament at all). Beyond this, though, I am completely comfortable with parliamentary supremacy. Indeed, I would argue that the alternative is forcing the highest judicial bodies to confront political questions. As an example, Brown v Board of Education over in the States was not a legal matter, but a political confrontation framed in "legalese." That's a gross violation of the principles of democracy (although, technically speaking, in the US their supreme court justices don't have to be judges/lawyers, but since they always are they don't get a pass).

Why do I mention this? Well, because I make the political argument that if a parliament has not repealed a piece of legislation that this is a tacit endorsement* of that legislation and, hence, the judiciary must continually understand legislation as it makes sense now. If parliaments are truly to be sovereign and the rule of law is truly to exist, every parliament accepts laws or gets rid of them... and if they accept laws they have a purpose to doing so.

The astute reader is probably thinking that the "sense" of a statute which has already been used in a court case is going to be affected by the way it was interpreted in that court case. Such a reader might also wonder if this means that the judiciary always has some kind of legislative (as in, law making) role... even without the common law. I agree (thus why I call such a reader astute).

The simple fact of one person having decided and stated a meaning of a text colours all subsequent thinking about the same text. From the strongest of disagreements to the most forceful affirmations. Every. Subsequent. Thought. The important bit is that parliament's interpretation is the interpretation (regarding purpose). And because parliament is the people and the people are the parliament old laws are thus not a barrier to the rule of law. So what if it is affected by the judicial interpretations of the past? This is simply the mechanism by which consistent meaning is achieved. No more. No less.

All this swings on that bit about predictability. I have some quite sharp criticisms of the Law and Justice systems, including its opaqueness, so the readability of the footnote is not something I want to bring on board. We cannot predict meaning and hence laws/legalness when we're meant to be reading from some quite alien experiences (i.e. those of the past): meaning is socially constituted (i.e. it's a product of the present moment and continually updating at that). This is simply how reading and understanding work.

When I was younger I was quite sympathetic to the flag change cause and also to the other view... to my understanding, I have presented a "living" statute/constitution argument so the other view would be originalism. These days, obviously, I disagree with both; holding them to be immature and childish... the former motivated by that childish concern with what others think and originalism the classic "but teacher said" immaturity. Hopefully it should be clear that I have implicitly suggested that a problem with originalism is that it is inconsistent with the rule of law, creating caprice and unfairness instead of justice through the availability of unpredictable meanings. It might likewise be said to rely on naive ideas about reading (ignoring the every. subsequent. thought. point quite entirely).

The thing is that as far as I can tell Originalism is an American thing. Which is appropriate because what has motivated this post is the question of whether or not the rule of law can be said to exist in the United States at all. Not because Originalist interpretations occur there (that is, as it were, something I discovered in the course of developing the ideal segue) but because no-one is sure if a sitting US president can be charged with a crime and subjected to prosecution.
It is undisputed, according to legal experts, that litigation over obstruction of justice or defamation could proceed after Trump leaves office. But the question of whether the president can be sued or prosecuted while in office is murkier.
I'm afraid this is just incompatible with the rule of law. If the rule of law truly was a feature of American society it would not be a question but a known fact that the US president could be charged and prosecuted. This is what the rule of law means... and it is what I cam to talk about. The Rule of Law does not exist in United States of America... and they might appoint a dude to SCOTUS who actively argues against it). Mental.

The rule of law should exist. The idea that everyone is subject to the Law is immensely reassuring, it's what lets us know that if we managed to get the coin together we might be able to go to a court and get a just outcome. The rule of law is a fundamental assumption we make in predicting human behaviour, without confidence that it exists it's hard to see the Law as a tool.. a means of getting things done. The rule of law lets is a fundamental presumption about society, and an eminently defensible one. The USA's ambivalence to it is another nail in a coffin that, these days, is surely mostly metal.


* In the common law it is actually assumed that silence cannot mean anything other than silence (there was a case about a horse, I think). This is generally more sensible and you might have seen one of the issues that arises with using silence to infer meaning. Notice how I seemingly want it two ways. Laws can be invalid if they are made by invalid parliaments, but if they aren't subsequently repealed by later parliaments then these parliaments are saying that the laws are, in fact, real. The reconciliation is simply that these were never laws at all. The later parliaments might want to have these laws around but they can't without actually making the Law in the first place. I have started from the premise that a parliament is also the way it says it will make laws; never actually making a law is not one of the ways any parliament has ever said it will make laws. This gives room for a court to come along years later and say, "Woah, hold on guys, that's not a real law, you didn't have a parliament there".

3 comments:

  1. Okay, so I asked a friend of mine for some feedback on this piece. Here's what he, a law student with an interest in public law (as well as a history and politics student) had to say:

    Okay, so it's cool that you've been thinking about this and that you're interested in the topic. A few things to consider:

    1. Your introduction doesnt really tell me what your overall argument is. Sometimes it feels like you're jumping from one thought to the next without the overall goal in mind.

    2. I don't think you've given enough weight to academic disagreements about what the rule of law is and how we define it. Also, don't cite wikipedia.

    Professor Geoffrey de Q Walker has stated that one could define the rule of law as the VALUES which institutions are designed to protect like human dignity. It could be in terms of PRINCIPLES whereby the institutions are to be safeguarded (like the rule that the government must have a legal basis in interfering the rights of citizens). It might refer to the INSTITUTIONS themselves who do the safeguarding, eg Parliament, the courts. Or it could be the PROCEDURES of the institutions to ensure accountability such as public hearings, habeus corpus etc.

    In other words, the rule of law arguably has both procedural and substantive aspects to it.

    3. You're a fan of Parliamentary supremacy, but in some passages I get the impression that other systems who don't have it, also don't have the rule of law (like the US). I think this is a mistake as it perhaps idealises our system too much and ignores most other western countries which the legal profession would agree do have the rule of law. In other words, don't cast the rule of law so narrowly that only probably NZ and the UK have it.

    4. A related point to the one above, but the participation of the courts does not ruin but rather enhances the rule of law. A court can do this through ensuring Parliament's manner and form requirements for passing legislation have been complied with (which you alluded to) and applying the principle of legality (a presumption that Parliament did not intend to override fundamental rights unless it uses explicit and clear language...and anything less will be interpreted consistently with rights). In other words, it is not just a matter of Parliamentary procedure, but this point goes to the fact that courts can play a role in enforcing the substance of the rule of law against Parliament. The rule of law is not just whatever Parliament decides it is.

    --- continues ---

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    Replies
    1. 5. I don't think you need to discuss the living constitution vs originalism/textualism. If you do leave it in there, I think you need to give them more space to develop. You dismiss them quite quickly, and although the debate is not as prominent over here, every judge adopts some kind of philosophy when it comes to interpreting statutes.

      6. You say America does not have the rule of law because it is not 100% clear whether or not the President can pardon himself. I think it is clear that constitutionally he cannot as there is an assumption that the person granting and being granted a pardon are separate entities. But there are disagreements over the issue just like there are disagreements over many legal and constitutional issues. BUT REGARDLESS of the answer to the pardon problem, this does not prove that America has or doesn't have the rule of law. It might form part of an answer, but it cannot be the whole answer in of itself.

      You cited Brown v Board of Education for example. This is actually a good example of the courts participating in protecting and upholding the rule of law, by securing equality before the law in education. Sure, some states' laws did have segregation written in to it, but the Constitution's equal protections clause is clearly incompatible with that. And it was intended to be such to prevent discrimination in the law against African-Americans after the Civil War.

      --- editorial remark ---

      I also asked him for a tl;dr on the substantive part:

      I didn't really agree with the piece because, as I say, I think it defined the rule of law too narrowly and applied it to other countries too narrowly.

      It's kind of hard to pick out what your main argument is.

      Delete
    2. I didn't tell him it was for a blog post until after he read. Devious, no?

      Delete