01 July 2015
by John de Meyrick

The rule of law: what does it really mean?

The term, "the rule of law" is constantly used by politicians, journalists, commentators and others as meaning that everyone is subject to the law and everyone must abide by the law.

Also, in this 800th anniversary year of the sealing of Magna Carta, it has been said and written by commentators that it was Magna Carta in 1215 that established the rule of law.

These usages of the term are not entirely correct and in some contexts they can be altogether misleading.

The rule of law does make everyone subject to the law but its correct meaning lies in its importance as a concept of governance. A constitutional framework for the way a community, state or country is, or should be, governed (as is the case in Australia).

In essence, it means that we are ruled by the law of the people, not by the arbitrary law of a superior individual or power group operating above the law.

So when we speak of the rule of law it should not be used out of context to just mean that everyone is bound by the law or must not do things that are illegal, but rather to mean that no one, nor any instrument of government, with delegated authority should be allowed to make arbitrary decisions affecting the rights of others without due process under the law.

A good example of this is the present debate over whether the Minister For Immigration should have the absolute power to cancel a person's citizenship without the right of that person to have the Minister justify that decision in accordance with the rule of law.

This concept of governance derives from ancient times when a leader was chosen (elected) for his strength and leadership qualities, not as a ruler with superior power, but as the first of equals. One who would uphold the customary laws and the ways of the tribe or kingdom as evolved and accepted over time for the civil order and harmony within society.

A condition of this concept was that, whilst the king governed on this basis his barons would swear loyalty to him and remain faithful. But if he failed to honour that obligation he could be risen up against and replaced.

The problem in those times was that, without true commitment and the means of enforcing and perpetuating such agreements (of which there were other similar charters both before and after the 1215 Magna Carta) kings would simply repudiate their undertakings, express or implied, and become supreme and arbitrary rulers giving rise to repeated internal conflicts.

This concept became even more difficult to maintain with the advent of royal succession and primogeniture, whereby male heirs to a king's land and property would also claim the automatic and divine right to the Crown as well.

As Charles I was to assert in 1660, that his authority to rule had been given to him by God. (He lost his head nevertheless.) Earlier in 1610, James I had dismissed the Chief Justice, Sir Edward Coke (pro: "Cook") for holding that the king was not supreme over parliament and the common law.

Magna Carta in 1215 most certainly reinforced the concept of the rule of law but it did not invent or establish it, as some claim. The barons were simply forcing a wayward King John to acknowledge and abide by a long held understanding of their rights, freedoms and liberties which he had denied and brutally abused.

It is important to note that the rule of law is a distinct but similar concept of governance from democracy which was evolving at around the same time in ancient Athenian Greece (use of the term being found in the political philosophy of Plato and Aristotle). Democracy, as Abraham Lincoln put it, is "government of the people, by the people, for the people".

Democracy was not established in our system by Magna Carta (as also claimed by many commentators) although it was relied upon by the barons about 50 years later to establish the first rudimentary, but short-lived, form of parliament outside the king's control.

Democracy came into the English system much later and over time with the gradual start-stop development of an independent parliament, representative government and the ultimate extension of the right to vote by every adult citizen.

Our constitutional system of governance, inherited from England, is a remarkable compact of democracy and the rule of law. It has been 'hammered out' over centuries of conflict between monarchs and their subjects. (Queen Anne in 1707 was the last monarch to assert royal authority by rejecting a parliamentary bill. Even George V in the 1930s, believed he had supreme power over parliament but never tried to use it.)

Every country has its head of state (or in some cases joint and collective heads of state). Their executive powers range from total despotic control to mere influence and symbolic importance. In Australia, our head of state, the Governor-General as the Queen's delegate, is restricted to a limited general executive and ceremonial role whilst having some very important but rarely needed to be used "reserve powers".

The rule of law nevertheless prevails, and it is essential in any move Australia may make from a constitutional monarchy to a republic that its function and purpose be ensured. For it is one thing to change, or retain, the head of state on independent or sentimental grounds and quite another to change a system of governance that works.