What is the rule of law?

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There are a few terms that politicians love to sling to score votes. Phrases like “silent majority” and “political correctness” have become so over-used they are almost meaningless. And any sentence following the oft-used “let me be very clear” is usually totally unclear in what it seeks to convey.

The phrase “rule of law” seems to have become one such political catchphrase. It has been tossed about in political debate to cover a range of issues from marriage equality to terrorism.

UNSW Professor of law and social sciences Martin Krygier, who is known as a veritable “guru” on the rule of law for the sheer amount of papers and articles he has written on it, wrote that “the phrase is used in so many ways for so many purposes, that one could be forgiven for thinking that many who speak of it don’t know what they’re talking about”.

So, if you’re a little confused about what the “rule of law” means, join the club. Then direct yourself and other members of said club to read on.

Concepts under the rule of law

As Krygier says, the “rule of law” is a “small phrase that points to large values centrally focused on the ways power is exercised”. It emphasises the need to temper power and moderate the exercise of power, so that it cannot be exercised at the will and whim of a few powerful individuals such as royals or heads of government.

Power-wielders must take into account the views, interests, defences and explanations of those their power might harm. This is essential in democratic societies, and requires a bunch of underlying concepts be upheld, including:

  • The law should be clear, known and enforced
  • Everyone must obey the law and be held accountable if they do not
  • The courts need to be independent to government and resolve disputes fairly
  • People are presumed innocent until proven otherwise by a court
  • Police and government officials can’t arrest or detain you without good reason

Former Justice of the High Court of Australia Michael Kirby puts it nicely:

“The rule of law is the principle that matters that are in dispute in society are determined by independent decision-makers and not determined by reference to money, power or guns that those decision-makers may have.”

History of the rule of law

This rule of law concept has a long history dating back thousands of years. The Ancient Greeks established a Senate to discuss and vote on government decisions, as well as democratic law courts with juries that could have hundreds of members.

Sure, their punishments may have been a little different to modern-day sentences (insert scene ft. Russell Crowe in Gladiator) but they established important concepts like holding people to account before the law and giving alleged criminals opportunity to have their matter heard before an independent court.

In 1215, English leaders signed a document called the Magna Carta, which set in writing the rule that monarchs and politicians must answer to the same laws as their citizens. The catalyst for this agreement was the tyrannical rule of King John (yep, everyone’s favourite greedy king from the story of Robin Hood) who imposed ridiculous taxes on his people and refused to follow the same rules himself.

The Magna Carta made everyone equal under the law – including King John – and is still considered the first document in British and Australian legal history to lay out the rule of law on paper. Even though it was actually written on sheep skin at the time.

Modern times

These days, the rule of law is a pretty oft-used rhetorical device by politicians seeking to gain our favour. A search on the Australian Federal Parliament’s Hansard database, at the time of writing, reveals that “rule of law” has been mentioned in Parliament on 4767 occasions by politicians debating topics from extradition treaties to tobacco policies.

Sometimes, a politician will condemn something as “contravening the rule of law” – sparking outcry among the more neurotic parliament Question Time viewers. Similarly, if a pollie is plugging a policy that they say “protects” or “reinforces” the rule of law, their constituents may be more likely to get on board in support.

The phrase seems a fairly patriotic epithet. But it doesn’t necessarily protect fundamental freedoms or civil liberties. Individual rights can be set aside if a government says it is necessary – anti-terrorism legislation is the most common example.

And while the “rule of law” has become a pretty flexible phrase that can be applied to different scenarios and concepts, it is not invincible.

“The rule of law is not a light switch,” said Martin Krygier at a legal roundtable discussion at the Law Society of NSW in August 2017. “It doesn’t just flick on and off. It can bend without breaking but you have to be careful – it will only go so far.”

So, would someone in parliament please check the lights?