Rule of Law

Abstract

Although there is deep academic disagreement on exactly what the ‘rule of law’ is, and whether it is a good thing, there is—paradoxically—widespread consensus that Australia exhibits the rule of law to a high degree; more so than most other nations.

There are two broad ways in which the rule of law may be conceived: as ‘thick’ and ‘thin’ theories of the rule of law. Each can be taken to extremes. An extreme version of the ‘thin’ theory is seen as purely formal: as long as coercive acts are clothed with the official authorisation of the governing regime, they are ‘law’ and the regime is a ‘law‐governed state’. The concern with this conception is, in Jefferson's words, that ‘law is often but the tyrant's will, and always so when it violates the rights of the individual’. Geoffrey Robertson (1999) records being assured by officials of one African dictatorship that their state ‘embodied the rule of law: the Constitution laid down that there shall be only one party, and there was’.

An extreme example of a ‘thick’ theory makes the rule of law too substantive, so that it exists only when the laws are just and wise, both in their origin—from some font of acknowledged authority, such as democratic consent or divine command—and their outcomes, when they sufficiently protect rights, maximise utility, or uphold God's law. Thus the International Congress of Jurists, meeting at New Delhi in 1959, defined the rule of law to include ‘the social, economic, educational and cultural conditions … essential to the full development of… [the individual's] personality’. Raz (1977) criticises this ‘promiscuous’ expansion of the term: ‘we have no need to be converted to the Rule of Law … to believe that good should triumph’—and advocates instead a version of the more balanced position held by other jurists of the political left.