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Living Law: The paradox of the ‘rule of law’ and why no one quite gets it right

The idea of the rule of law is very old; it has been traced way back to the time of Aristotle (384 – 322 BC), who wrote that it was “better for the law to rule than one of the citizens […] so that even the guardians of the law are obeying the law.”

Judges use the phrase to describe concepts of law but that does not prevent it from being interpreted differently by all and sundry. It is rare to find two persons who have precisely the same view on what the “rule of law” means. And who is to say who is wrong or who is right?

Photo: Prime Minister Dr Keith Rowley (right) poses for a snap with defeated Siparia candidate and Lake Asphalt board member Vidya Deokiesingh who was implicated by a Petrotrin Audit Report into the A&V Drilling company.

Politicians love to use the phrase, which, in their mouths, usually means, “No matter the judgement, our side won.”

“… the utterance of those magic words,” Professor Jeremy Waldron is quoted as saying when commenting on Bush v Gore) “meant little more than ‘Hooray for our side’.”

Truth be told, the Rule of Law is a paradox, a contradiction both in theory and practice. Let us take a closer look at just what we can glean from those four words.

Everyone “understands” what the phrase means—or thinks (s)he does—yet no one is able to quite pin it down. It is political, yet apolitical, ‘fixed,’ yet constantly in flux. It suggests an absence of tyranny but offers no protection from tyranny. It also suggests a limitation to the possible abuse of power by the State, yet, despite being repeatedly referenced by the courts, it is not legally enforceable; its power, it has to be said, comes from emotive appeal, not from law.

The phrase appears in written instruments of law but remains without a clear definition. It conflicts with the notion of Parliamentary Sovereignty (the idea that Parliament can make or unmake any law) but is really a means of social control without legal rules.

That is a non-exhaustive list. I shall attempt to give a short explanation of what the rule of law is and attempt as well to show what it isn’t. It is my hope that, as we examine some of its strengths and some of its weaknesses, some of the paradoxes above will become clear(er).

Photo: Former “honourable” government ministers Anil Roberts (left) and Jack Warner, both of whom served in Kamla Persad-Bissessar’s People’s Partnership Cabinet.
(Copyright Trinidad Guardian)

Law students first encounter the phrase ‘rule of law’ in connection with Albert Venn (AV) Dicey (1835 – 1922), former professor of law at Oxford University. Dicey was, for many years, considered the foremost ‘authority’ (I use that word with due caution) on the rule of law and popularised the phrase in his book Introduction to the Study of the Law of the Constitution. He suggested that there were three tenets, or principles, present in the rule of law.

The first is that “The State cannot exercise arbitrary power.”

This simple statement is more revealing than it appears. What Dicey envisioned was that the State’s power—and its use of that power—must be controlled by law and the State cannot be allowed unfettered use of its powers. Dicey also thought that rulers of State do not have any wide discretionary powers to create law but must do so within an established framework for creating laws, or by prior established law. In other words, the State cannot arrogate onto itself powers that it does not have—or merely thinks it has.

There is another principle associated with the use of law to limit the State’s power. This asserts that a person cannot be punished by the State for something which is not against the law, or which was not against the law at the time the act took place. In plain words, if an act is not explicitly forbidden, it is permitted and cannot be made a crime retroactively. Also, a person may only be punished for a breach of law proved before an ordinary court.

Principle Number Two is that “There must be equality before the law.”

This may perhaps be a self-evident principle but one which is clear: Everyone, including the State and its agents, is bound by the same laws. In the immortal words of Thomas Fuller, “Be ye ever so high, still the Law is above Thee.”

Photo: Former health minister Dr Fuad Khan (right) shares a tender moment with UNC financier Ish Galbaransingh, who is wanted for corruption by the United States Government.
(Copyright Trinidad Guardian)

Number Three is the “Origin of rights.”

In Dicey’s view, rights of the Englishman were derived from judgements coming from the courts whereas, under ‘Continental’ constitutions, rights were, in his view, derived from the principles laid out in those constitutions.

Under the British Constitution, therefore, rights were gradually obtained through judgements in which distinct principles were identified as abuses of power against the common man. Progressive limitation of those excessive powers resulted in identifiable rights.

Entick v Carrington [1765] EWHC J98 (KB) is a fine illustration of several of the principles explained in the preceding paragraphs.

On 11 November, 1762, newly appointed Secretary of State Lord Halifax sent his Chief Messenger, one Nathan Carrington (the defendant), to the home of John Entick (back then called the plaintiff) with a warrant:

“…with force and arms broke and entered the dwelling-house […] and continued there four hours without his consent and against his will, and all that time disturbed him in the peaceable possession thereof, and broke open the doors to the rooms, the locks, iron bars, etc. thereto affixed, and broke open the boxes, chests, drawers, etc. of the plaintiff in his house, and broke the locks thereto affixed, and searched and examined all the rooms, etc., in his dwelling-house, and all the boxes, etc., so broke open, and read over, pried into and examined all the private papers, books, etc. of the plaintiff there found, whereby the secret affairs, etc., of the plaintiff became wrongfully discovered and made public and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc of the plaintiff there found, and other 100 charts etc etc took and carried away, to the damage of the plaintiff 2000l (£2000)”

Photo: A judge calls for order.

Arising out of the judgement were the following principles:

(1) A State official cannot appropriate for himself power he does not have.

(2) A State official’s authority must be clearly established in law.

(3) The State is permitted to do only what is expressly (explicitly stated) permitted in law but the individual may do anything except that which is expressly forbidden in law.

(4) “Every invasion of private property, be it ever so minute, is a trespass.” This is also reiteration of the concept that “A man’s home is his castle…”. No one can interfere unlawfully with a person or his property.

(5) The burden of proof is on the trespasser.

Perhaps the best overall interpretation is to say that a person has the right to respect for his private life, home, etc.

Dicey’s view of the rule of law was understandably narrower than today’s perception, which, thanks to several academics such as Raz, Unger, Dworkin, Fuller and Bingham, is more comprehensive than Dicey’s.

About Mohan Ramcharan

Mohan Ramcharan is a Trinidadian living in England, an LLB (Hons) law graduate, systems thinking practitioner, and critical thinker. He is a product of two cultures and strives to be ethical and impartial in his thoughts and actions.

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9 comments

  1. This article was quite anti-climatic. In addition, what was said in this article to justify the undergoing statement of opinion by the writer?

    “It conflicts with the notion of Parliamentary Sovereignty (the idea that Parliament can make or unmake any law) but is really a means of social control without legal rules.

    • Hi Jason,

      This is part 1 of a series on the rule of law, so look out for the other parts to complete a whole picture.

      Nothing in these posts is MY opinion but are the views of respected academics and lawyers/judges who have contributed to our understanding on the rule of law.

      • Thank you for response. Who is the particular statement cited attributed to if not the writer?

        • “Who is the particular statement cited attributed to if not the writer?” re conflict with Parliamentary Sovereignty.

          Many academics who theorise on the rule of law, including Joseph Raz, Lon Fuller, F A Hayek, Paul Craig, Lord Bingham… in fact, any person who gives some thought to this can independently arrive at that view.

          For example, if Parliament can make or unmake ANY law, what is there to stop Parliament from changing the rule of law itself? Or what is there to prevent Parliament from taking away fundamental rights? I am sure you will be able to come up with further examples.

          The idea that the rule of law as a means of social control can be explored through Prof Fuller’s (Harvard Law School) work, “Law as an Instrument of Social Control and Law as a Facilitation of Human Interaction.”

  2. It’s not accurate to say that the rule of law cannot be defined or is not legally enforceable. The paradox is in the system of the separation of powers on which it depends – the high officers of state are said to be subject to the law, which is imposed on them by a judiciary- itself appointed by the state. The term is in the preamble to our constitution.

    • I see what you mean. And the potential difficulties, which we already know so well.

    • “It’s not accurate to say that the rule of law cannot be defined or is not legally enforceable.”

      Please define the rule of law, and then show one case where it is demonstrated how it can be enforced. The ‘rule’ of law is more of an ‘honour code’ rather than a legally enforceable rule, but since you asserted otherwise, the burden is upon you to prove your statement.

  3. Interesting reading on this would be The Law Frederic Bestiat.

  4. Didn’t see too many paradoxes in the article to be honest.