Understanding of the Rule of Law - Book Report/Review Example

Public Law The legal nature and character of the UK's constitutional democracy, which over several hundred centuries has undergone and continues to undergo a constant process of evolution, serves as a solid point of departure in any examination and analysis of Albert Venn Dicey's views on the rule of law in a constitutional democracy, insofar as they pertain to the central notion that official power must not be absolute, but controlled and limited. Less certain, however, is any ability to point to a single, tangible definition that distils precisely what is meant by the term 'rule of law' in a constitutional context. Although the UK does not have a formally written constitution, it would clearly be misleading or even false to state that it has an unwritten constitution. It is the extensive body of conventions and traditions, common law and judicial review-virtually all of which have been reduced to writing, even if not codified-that has contributed to create what might be called the UK's 'living' constitution, which is firmly rooted in what constitutional experts deem to be the rule of law. Fundamental to an understanding of the rule of law as a practical concept applied to modern constitutional democracies is the idea that checks and balances are necessary to separate, limit and control the powers of the legislative, executive and judicial branches of government. Insofar as concepts and theories about government are concerned, the quintessential point expounded by Albert Venn Dicey, as well as many who preceded and have followed him, is that it is the rule of law, rather than the rule of man, which all government authority is subject to and constrained by. In Dicey's seminal Introduction to the Study of the Law of the Constitution first published in 1885, which gives a classic exposition on the rule of law, he posited that the rule of law consisted of three key attributes: the supremacy of 'regular law' as opposed to arbitrary power; equality of all before ordinary courts applying ordinary law of the land; and the rights of individuals as defined and enforced by the courts. Dicey's doctrine of the sovereignty of Parliament meant two basic things: that Parliament may make or unmake any law whatsoever, and, conversely, that no one has the authority to set aside or override the duly enacted legislation of Parliament. In the absence of the rule of law, according to Dicey and other liberal democratic constitutionalists, there would exist instead a situation whereby the will of an individual, or even a group such as a political party, would be the governing force in a given state or society. It is these two opposing notions, the rule of law versus the rule of man, with which Dicey was concerned within the framework of the contrasting concepts of legitimacy and arbitrariness of government. Dicey's views on the rule of law derived from the basic idea that the state must adhere to predetermined rules in its dealings and relationship with its citizens, rather than govern in secrecy, arbitrarily or unaccountably, all of which are characteristic attributes of tyrannical, dictatorial and authoritarian regimes. In the case of the UK, as has been stated, Dicey's basic view about legitimacy was that only Parliament had the sovereign power to make and unmake laws. Such legitimacy of Parliament implies an external legal rule or principle by reference to which state authority or government is constituted, identified and controlled, and it is for this, as opposed to ad-hoc decision making under the rule of man, that the rule of law is designed to serve. Important contributions to constitutional theory on these matters have been made by Friedrich A. Hayek, who as the thesis for one of his many books stated "that a condition of liberty in which all are allowed to use their knowledge for their purposes, restrained only by rules of just conduct of universal application is likely to produce for them the best conditions for achieving their aims; and that such a system is likely to be achieved and maintained only if all authority, including that of the majority of the people, is limited in the exercise of coercive power by general principles to which the community has committed itself" (Hayek, 1981, Vol. 1, p. 55). One practical problem that has resulted, however, is that if all state authority is subject to and constrained by the rule of law, but there is no universally accepted statutory definition for the existing constitutional principle of the rule of law, it remains vague as to precisely what it is in the 'rule of law' that gives legitimacy to Parliament's sovereignty in the UK's constitutional democracy. The debate that accompanied consideration of the Constitutional Reform Act of 2005 is but one recent example that serves to illustrate how the absence of any statutory definition of the rule of law as a constitutional principle has left the door open to divergent opinion and viewpoints on this matter. In the first section of the Constitutional Reform Act of 2005, for example, it is stated that nothing in the Act detracts from "the existing constitutional principle of the rule of law" or "the Lord Chancellor's existing constitutional role in relation to that principle." Although section 17(1) of the Act alludes to the continuing importance of the rule of law in our contemporaneous times, to the extent that Lord Chancellors must take an oath to respect the rule of law and defend the independence of the judiciary, a major weakness would seem to be that the Act itself does not in any way define the existing constitutional principle of the rule of law, or the Lord Chancellor's existing constitutional role in relation to it. It is for this and other reasons that there have been many constitutional scholars and others who have contested either Dicey's views on the rule of law or the very notion of the rule of law as an underlying constitutional principle. One example of a minority view is that of the radical liberal individualist Herbert Spencer, a 19th century contemporary of Dicey's, who critiqued and challenged the basic tenets of the rule of law on the basis that the sovereignty of Parliament was merely a way to usurp one arbitrary authority, the divine right of the King, for another, the divine right of Parliament (Spencer, 1981). In fact, due to the dynamics of change, Dicey himself later came to amend his earlier views to reconcile the elusive concept of 'rule of law' with practical realities. In his preface to the eighth edition of Introduction to the Study of the Law of the Constitution, he acknowledged that there would always be some imperfections in the concept of the rule of law and its practical application. More recent developments that have unfolded over the past three decades, including the UK's 1973 accession to the European Community and Parliament's 1998 adoption of a Bill of Rights, have also had a major influence on reshaping opinion about Dicey's views and the essential nature of the rule of law in the UK's constitutional framework. As a member of the European Community, for example, the UK's courts have the judicial authority to grant a remedy that effectively suspends an Act of Parliament where, under sections 2 and 3 of the European Communities Act of 1972, such an Act violates directly applicable EC law. In a similar fashion, as a direct result of the adoption of a Bill of Rights, the UK's superior courts are now in a position to grant a declaration of incompatibility which will have the effect of the court declaring that a provision of an Act of Parliament stands in violation of one of the human rights safeguarded under the 1998 Act. To the extent that administrative law presents many modern day challenges to the UK's notion of the rule of law, Mark Elliott has proposed a model for what he terms "modified ultra vires," which essentially argues that all judicial interpretation takes context into account. He posits that the rule of law is a fundamental precept of the British Constitution and, therefore, Parliament must be assumed to craft its legislation with the rule of law in mind. (Elliott). It is a consequence of this, Elliott observes, that allows the courts to bring the principles of good administration to bear on administrative acts because that is how Parliament promulgates statutes. This at once circumvents the theoretical shortcomings of the traditional ultra vires model and avoids challenging parliamentary sovereignty. He also demonstrates how this approach can be made to fit into judicial review of the prerogative powers, such as areas of crown discretion which Parliament has not acted to circumscribe, EU law, and the complexity of emerging human rights law. Elliott has said that his objective was to "develop a justification for judicial review that both provides a convincing account of its operation in practice and reconciles it with the constitutional framework," and, because work does not discuss case law, it makes important contributions to an understanding of the legal nuances of the UK's constitutional structure (Elliott, 106). Where the rule of law is concerned in a much broader context, there are still further complex issues-such as the arrest, detention and interrogation of terrorism suspects-which could not have possibly been envisaged by Dicey and other constitutional experts who followed him. The recent much-publicised case of Majid Khan, a suspected terrorist held by the US and interrogated in a secret CIA prison without legal process, serves as but one example to illustrate the increasingly complex nature of disputes between citizens and their governments, or indeed between governments themselves. In the case of Majid Khan, who was born in Pakistan but attended a US high school before returning to Pakistan in 2002, the US Justice Department has requested that a US District Court forbid Khan from revealing to anyone, including his own lawyer, the details or techniques used by the CIA in his own interrogation. The extraordinary request was made in the context of a habeus corpus proceeding filed on Khan's behalf to challenge the legality and constitutionality of his detention. The US Justice Department claimed that, because Khan may have been exposed to alternative CIA interrogation techniques classified by the government as top secret, he must, while defending himself, keep those secrets. Such an attempt to silence Khan in a hearing where he challenges the legality of his own detention raises fundamental questions about the US government's adherence to the rule of law. An outspoken critic of the secrecy that surrounds the handling of terrorism suspects and its implications for the rule of law is James Friedman, law professor at the University of Maine School of Law. Friedman has written that "the detention and interrogation of terrorism suspects makes the rule of law impossible to determine and thus to maintain" (Friedman, 2006). He has asserted that contrary to requirements set out by the US Supreme Court in Hamdi v. Rumsfeld (2004), as well as the guidelines issued in the Detainee Treatment Act of 2005, Khan's combatant status has never been reviewed. He has argued that in the absence of due process and fundamental fairness to Khan, and others charged with war crimes or crimes against humanity, an absence of the rule of law can be seen in the inability to pierce the veil of secrecy and determine how the US government treats such suspects. It is these and other matters that draw attention to Jeffrey Jowell's observation that, despite the sound efficacy of the famed 19th century jurist's postulations about the need for separation of powers in a liberal constitutional democracy, Dicey's views on the rule of law have nonetheless been highly contested. Jowell astutely refers to the fact that many constitutional law scholars have argued and will likely continue to discover that there are many flaws and shortcomings in Dicey's basic postulations about the rule of law, which Dicey himself readily recognized. Perhaps the most important lesson to be learned is that it is in the very nature and essence of government that it must be in a constant state of change, ebb and flow, and it is for this reason that we must maintain a degree of flexibility in our views about Dicey had so thoughtfully formulated over a century ago. References Dicey, A. V. Introduction to the Study of the Law of the Constitution. Indianapolis: Liberty Fund, Inc., 1982 [1915]. Elliott, M. The Constitutional Foundations of Judicial Review. Oxford: Hart Publishing, 2001. Friedman, J. (2006). "Secrecy, Interrogation and the Rule of Law," Jurist. Retrieved November 29, 2006 from University of Pittsburgh School of Law. Web site: http://jurist.law.pitt.edu/forumy/2006/11/secrecy-interrogation-and-rule-of-law.php Hayek. F.A. Law, Legislation and Liberty. Chicago: University of Chicago Press, 1981. Hayek, F. A. The Political Ideal of the Rule of Law. Cairo: National Bank of Egypt, 1955. Spencer, H. "The Great Political Superstition," in The Man Versus the State, with Six Essays on Government, Society, and Freedom, ed. Eric Mack. Indianapolis: Liberty Classics, 1981, pp. 123-166. Read More