Law Sessions With Jennifer Housen’s Podcast

The Rule of Law: Philosophical Foundations and Constitutional Cornerstones

Subscriber Episode • • Jennifer Housen • Season 3 • Episode 1

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The rule of law is a cornerstone constitutional principle ensuring the supremacy of law over all individuals and institutions in society. We explore diverse philosophical and political perspectives on this foundational concept, examining its relationship with separation of powers and parliamentary sovereignty.

• General definition: law is sovereign and all are subject to it
• Philosophical perspectives from Aristotle, natural law theorists, and social contract theory
• Political theoretical viewpoints including Marxism and Professor Joseph Raz's approach
• Responsible government concept requiring accountability within legal boundaries
• Historical significance of the 1611 Case of Proclamations in limiting Crown power
• Introduction to A.V. Dicey's exposition on rule of law as a constitutional cornerstone


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Music. Welcome to Law Sessions. I am Jennifer Housen. In this Law Session, we will deal with the public law concept of rule of law. We will deal with the public law concept of rule of law.

Speaker 1:

Now, if you have listened to our earlier law sessions, for example the one relating to separation of powers, you will certainly have some idea that the rule of law, of course, is one aspect of the whole constitutional framework of the UK and, as such, it does provide for a concept which has some degree of correlation with, for example, the separation of powers, and certainly for another lecture that we will, of course, go through, which is parliamentary sovereignty. What, then, is the rule of law? Well, as we go through this next hour or so, we will look in the views on the rule of law, whether from a political theory aspect, or we'll look at it from the concept of responsible government. We will also, of course, look at AV Dice's analysis and certainly we will consider some practical examples as well as what the threats are to the rule of law. Well, let's consider a general definition, just so you know what it is we're dealing with. Well, the concept of the rule of law generally refers to the longstanding constitutional principle that the law is sovereign and that all are governed by, and therefore subject to, the law. That is the idea of the rule of law.

Speaker 1:

Now, there are many theories concerning the rule of law and certainly it is not intended in any exam, by any stretch of the imagination, that you should know every single theory or be able to expound on all of them. It's simply impossible. You certainly can read most of them, but in order to do it justice, I would certainly expect you to grasp anywhere between two and three of them. Well, there are different ideologies on this and there is a wide debate on what exactly is the rule of law, or even what is this law that we are referring to and what are its characteristics. Because, when you look at the rule of law, is it some esoteric concept that means nothing to anybody? Well, let's take it from various points, then, in considering it.

Speaker 1:

When you look at it from the viewpoint of, say, western liberal democracies, the rule of law is largely seen as the yardstick for determining whether a government is acting under the law or whether the rights of individuals are protected. Now, there are some theories that view the principle as no more than a formality, which is used in order to make you, for example, comply with the law. So it is no more than obtaining compliance with the law. Now, if you take it from a philosophical point of view and certainly let's start with Aristotle Aristotle says that the rule of law is preferable to that of any individual. Even it be better for certain individuals to govern, they shall only be made guardians and ministers of the law, the point being, an individual should not be the law. So it should certainly be that even if you have a situation where the law is stated, those who are carrying it out should only be no more than guardians. So, according to Aristotle, there is nothing more jealously maintained than the spirit of obedience to the law. Where laws do not rule, there is no constitution. That's his view. Now we can, of course, find some support from Aristotle's point of view, from Socrates, who chose to die rather than live in a situation where the rule of law is not maintained. Now we say that there are certain philosophies and ideologies, and for those of you who come to do, for example, jurisprudence later on, or for those of you who've done some sort of social sciences and have looked at certain theories, we will look at, of course, at some of the theories in respect to the rule of law.

Speaker 1:

Very briefly, of course, let's consider what natural law theorists consider the rule of law to be. Well, natural lawyers consider that there is a view that there exists a higher authority than that of man-made laws. So it basically says that the laws of nature, for example, or the laws of God given to man, are far higher. Now, these laws are felt to take precedent over any man-made legal system, and certainly they must prevail where there's a conflict. So natural lawyers see man-made law as no more than an extension of natural law or God-given law. And certainly there is some basis. For example, some of the criminal law aspects in relation to offenses thou shalt not kill comes from the Bible, and we see that, by and large, most democracies provide for some offense where one person deliberately seeks to take the life of another.

Speaker 1:

Now, another approach, of course, is that the rule of law can be viewed from the point of view of a social contract, and this is a view that individual human rights transcend the law of the state and, in return for that, supremacy of the state law. And so the state is there from a point of view of duty to protect us, the individuals, by virtue of them protecting us, we've given up some of our sovereign rights. So, basically, you've given something to get something. The state has a duty to look after us. We therefore give up some of our individual rights on that, and that therefore holds sway in terms of what the rule of law is. But from a political, theoretical standpoint, if we take on board first of all Marx and his views, well, the Marxism approach was that the rule of law is a mechanism used in liberal society to maintain the control of the ordinary citizens by the powerful and affluent in society. Make of that what you will. I'm sure there are persons who can say yes, that's the case, it's well, it's. Look at who are the judges, look at the background of where persons are drawn from, because, remember, the idea of the rule of law is that you should have laws which, of course, ensure that society is kept in check.

Speaker 1:

Now, professor Joseph Ross, on the other hand, believes that the rule of law is just a political ideal by which a legal system may be judged, which is a different thing entirely. He says you look at a legal system and then the rule of law is more or less a yardstick in determining how you should judge a particular legal system, as it were. He made the very interesting point that the rule of law ought not to be confused with democracy or equality or justice. He says that's not the rule of law, or equality or justice. He says that's not the rule of law. So he's saying that you should look at yes, it is used to judge it. But don't believe that just because another country's framework or what they provide for is different from yours, or what may be wrong in that country is different from yours, is not about whether or not it doesn't follow the rule of law.

Speaker 1:

Ross pointed out that one important characteristic of any legal system is clarity, which is important for individuals to be able to understand and obey the law. Now, this is in no way synonymous with justice nor democracy, as, frankly, a totalitarian state could also possess these characteristics. So you could have the rule of law in a dictatorship, because it is about knowing the law and people obeying that law. So Ross draws the analogy to the sharpness of a knife that can be used to commit murder or perform life-saving surgery. Now Professor Lon Fuller argues that the law must be inherently moral if it is to command the obedience of citizens. Now he's looking at the rule of law from the standpoint of morality. So these are only but some of the views that are considered either, I say, in a philosophical or in a political context, and certainly the book I recommend, which is Hilaire Barnett, certainly looks at various other types, other views, rather, and I would urge you to look at them in order to get a somewhat fuller understanding.

Speaker 1:

Now, if we look generally, though, at the rule of law, it is about the concept of responsible government, and that concept of responsible government is therefore important to the concept of the rule of law, and the view is that the government, who are, of course, the cabinet and the prime minister, as well as members of parliament, are elected by the citizens and they are to be held accountable to the electorate and they must operate within the law. Now, parliamentary procedures are in place to help hold the government accountable, and the process of judicial review certainly gives remedies to any abuse of the power used by public officials. Now, the essence of the UK's attitude, when you consider rule of law, is clearly set out in the case of proclamations in 1611, where Lord Coke held that the Crown has no prerogative to change the common law or statute, so it is not up to the Crown to change the common law or statute. So it is not up to the crown to change a common law or statute or to create any new offenses. He also said that the king only has the powers that the law allows him. Now the case is important as it is a move away from arbitrary government and what it does is to cement the separation of power and the subjection of the executive to the rule of law.

Speaker 1:

Now again, if you'd watch separation of powers, I said to you, it will come back, uh, to haunt you, as it were, under the rule of law.

Speaker 1:

Because the point is that when you look at, uh, the case of proclamations, we see here that you have a system where it is not up to the crown to make laws because, frankly, as we get to parliamentary sovereignty, that is the remit of parliament. Now, when you look at the UK's attitude as it relates to the rule of law, then this is where we come to what most law students will straight off consider when you say to them rule of law, and that, of course, is AV Dicey's exposition on the rule of law. And when you look at this exposition, av Dicey, writing in the law of the constitution recognized the rule of law as one of the three guiding principles, together with the sovereignty of parliament and, of course, the emergence of constitutional conventions, and he considers that this, the rule of law, is one of the cornerstones of the british constitution. What I want us to do when we return course is to carry on and to look at Albert Van Dyck's exposition of the rule of law and what he says it should be.