James Manwaring
This is the fifth and final part of a 5 part series which details the basic idea behind the Rule of Law, and proposes the idea of a ‘timetable’ to explain the different components of the concept. Click for parts 1, 2, 3 and 4.
The Rule of Law as a Spectrum
If you’ve been following closely up until now, then a) congratulations, and b) what did ‘more’ Rule of Law mean? Surely you either have it or you don’t?
Well, no, actually.
As touched on earlier, plenty of people are going to disagree that we should have more certainty and more ‘Rule of Law’. Who could begrudge a bus driver who skips all stops to rush a passenger to hospital? What would you say if a timetable didn’t specify exact timings, to allow for more flexibility to cater for demand during peak hours? The rigidity of certainty and strict application of rules will often be at odds with the reality of life. The Rule of Law may hinder the very aims it sets out to achieve.
Almost every Law needs some flexibility. Whether it’s denying extraordinary executive powers in times of war or preventing a policewoman exercising discretion for a stop and search, making the Law perfectly possibly to follow would also make it perfectly ridiculous.
So is the Rule of Law a bad thing? The answer is, of course, no.
Rather, it is to be seen as a spectrum. A sliding scale where more is usually better, until the point where it starts to become excessive. A balance needs to be struck. The Rule of Law is a qualified good, and worthy arguments can be made for less of it. The real discussion lies not in pinning down what we want to include within the term, but rather how much Rule of Law we want.
In the simplest possible terms, a Rule of Law is simply a state of affairs where the supreme guidelines are laws. Not people making decisions. Not people using laws as a proxy for their decisions. Intrinsically and extrinsically, respectable and respected, rules of law combine to create a Rule of Law.
So to summarise:
1) The Rule of Law is like a timetable. You can guide your future behaviour on the basis of it. It consists of two elements.
2) The first are inner standards. These relate to the rules themselves; the intrinsic qualities that mean anyone can base their behaviour on the timetable. They include things like rules being supreme, publically promulgated and not having retrospective effect.
3) The second are application standards. These relate to enacting the rules; the external application which makes the recorded rules meaningful. They include things like fairness and equality of application, and accountability.
4) The Rule of Law does not include additional extras such as respect for human rights or the separation of powers. It is not shorthand for ‘the Rule of Good Law’.
5) The Rule of Law is a spectrum, ranging from complete arbitrariness to complete certainty. Neither extreme is desirable, rather we should strive for as much Rule of Law as possible before it becomes too inflexible or unjust. The question of where the line should be drawn is ripe for constant political debate.
James Manwaring is an Editor of The Online Society. He studies Law at the University of Warwick.
