Dr Robert Craig – Written Evidence (ROL0064)

 

In defence of Joseph Raz: the rule of law in the modern constitution

 

Introduction

 

  1. The concept of the rule of law is a distinctively British and surprisingly recent contribution to constitutional law discourse. It is commonly claimed to have roots in Aristotle’s work, but if you actually read the passage commonly cited as the source for this claim, his argument is surprising to modern eyes. Aristotle argued that there is an inescapable tension between any pre-existing and binding legal rules and what ‘justice’ requires, the latter famously being an issue that preoccupied the Ancient Greeks considerably. He claimed that legal rules were either entirely superfluous, because they coincided with what justice requires, or were actively damaging where the outcomes diverged. No stalwart defender he.

 

  1. After Aristotle, the historical intellectual cupboard is quite bare until you reach the famous Victorian constitutional theorist, Albert Venn Dicey, whose three-limbed definition captured some of the essence of the modern concept. First, he argued that core to the idea of the rule of law is the rejection of arbitrary power. Secondly, he claimed that it is essential that public officials should be equally subject to the law in the same way as ordinary people. He actually went further than that, damagingly arguing (or being interpreted as arguing) that officials should be subject to the same law. This is a subtly different idea and for many decades this error hampered the development of a separate corpus of administrative law governing the executive.

 

  1. Steeped in English constitutional law as he was, Dicey thirdly argued that the long traditions of political constitutionalism and the common law were a far better bulwark against tyranny than any bill of rights. He viewed the latter as not worth the paper it was written on because it could be swept away at the stroke of a legislative pen. Dicey’s role as the patron saint of political constitutionalism in the UK is predicated on his consistent defence of the proper and central role of parliament. He claimed that if you want to protect rights, the culture and norms evidenced by the common law and our shared political culture are the only effective long term defence.

 

  1. What is sometimes missed in analysing Dicey’s seminal contribution is just how innovative it was. His analysis is instinctive rather than philosophically principled precisely because he had no definitive or prior classical resources to draw upon. For a rigorous, penetrating and arguably definitive philosophical analysis, however, we must turn to a world class Oxford legal philosopher, Joseph Raz. His seminal definition in 1979 is widely regarded as a paradigmatic expression of what is increasingly being described as the ‘thin’ conception of the rule of law.

 

Joseph Raz and a neutral definition of the rule of law

 

  1. The contribution made by Raz to the definition of the rule of law will likely be cited for centuries to come. I suggest that it provides the clearest and most sensible baseline and philosophical starting point for considering the concept. Nearly half a century after his essay was first published, his searing insights still have the capacity to induce the feeling of the scales falling from one’s eyes on the nature of the rule of law.

 

  1. The primary reason for starting with his groundbreaking work is that if the committee members are searching for some consensus on such a deeply contested principle as the rule of law, Raz supplies such a definition because, perhaps surprisingly, even the most ardent believer in the substantivist or ‘thick’ version of the rule of law must necessarily endorse his explanation.

 

  1. The reason is simple. Raz provides an extremely narrow definition. Any broad and expansive substantivist definition necessarily includes the narrow definition. No substantivist rule of law defender disputes any of the eight famous elements in Raz’s definition. In stark contrast, defenders of the Razian definition (including this author) take very serious issue with the expansive definition defended by substantivists. Indeed, as we shall see, Raz himself explains why the expansive definition is so problematic.

 

  1. Early on in his seminal article on the meaning of the rule of law, Raz highlights a particular substantivist definition from a Congress in New Delhi as his argumentative foil. It is so extreme that it is perhaps worth setting out in full:

 

The function of the legislature in a free society under the Rule of Law is to create and maintain the conditions which will uphold the dignity of man as an individual. This dignity requires not only the recognition of his civil and political rights but also the establishment of the social economic, educational and cultural conditions which are essential to the full development of his personality

 

  1. Raz goes for the jugular in attacking this definition. He points out that if you expand the meaning of the rule of law to encompass your views on all manner of ‘good’ and ‘moral’ things then you risk conflating the rule of law with your entire value system. This causes two major problems: first, you dilute into oblivion any independent and useful meaning intrinsic to the rule of law itself; secondly, you risk surreptitiously cloaking your particular, catholic set of contested moral and political views about human rights, international law, democracy, motherhood, apple pie and Boris Johnson behind a claimed neutral veneer of the rule of law.

 

  1. Such cloaking is generally indicative of insecurity in the political salience of the speaker’s views. If the political arguments were strong on their own merits, there would be no need to hide behind the rule of law. It is perhaps no coincidence that many of those now loudly seeking to expand the rule of law to encompass their broader values have started to notice that many of their contentious political views appear not to be overwhelmingly popular at the ballot box. Since some of them overreach so far that they even claim their values to be ‘universal’, it is no surprise that they have sought to coopt the rule of law in order to further their contested political goals. These nefarious machinations must be resisted because, for Raz, the rule of law

 

is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man.

             

The eight principles of the rule of law, according to Raz

 

  1. What then constitutes the rule of law for Raz? He sets out the core meaning as encompassing two central ideas:

 

(1)    that people should be ruled by the law and obey it

(2)    that the law should be such that people will be able to be guided by it

 

  1. It is the latter idea that Raz returns to repeatedly when deriving his famous eight principles that flow from this notion. He makes clear that the rule of law requires that people be able to plan their life in response to the law. How can you possibly plan your life securely if the law is secret or incomprehensible, or changes retrospectively, or is constantly being amended, or you cannot enforce your legal position in court, or the police apply the law differentially, randomly or unfairly? By asking these kinds of eminently reasonable and basic questions, he derives eight principles:

 

    1. Laws should be prospective open and clear
    2. Laws should be relatively stable
    3. The making of particular laws should be guided by open stable, clear and general rules
    4. The judiciary should be independent
    5. The principles of natural justice should be observed (fair hearing, no bias etc)
    6. The courts should have review powers
    7. Access to the courts should be protected
    8. The discretion of crime-preventing agencies should not be allowed to pervert the law

 

  1. Readers may well be struck by how neutral and narrow these claims are – or ‘thin’ if you like. Critically, however, they express the essence of the rule of law as a comprehensible idea, or ideal, untainted by extraneous conceptual baggage that would otherwise dilute, distort and indeed obscure its core meaning.

 

  1. Raz is entirely aware of the neutrality of these ideas, and he suggests that this has a startling philosophical consequence. When considered on their own, Raz rightly claims that it is entirely theoretically possible for morally bankrupt regimes to substantially comply with these eight precepts.

 

A non-democratic legal system, based on the denial of human rights, extensive poverty, racial segregation, sexual inequalities and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.

 

  1. Raz is clear that this would not mean that such a system would be morally superior to a modern democratic liberal legal system - on the contrary in fact.

 

This does not mean that it will be better than those Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law.

 

  1. This claim may feel alienating for any readers who may be wedded to the notion that the rule of law constitutes a fundamental expression of their democratic political values, systems and ideology. Nevertheless, the point Raz is making is critical to understanding the concept of the rule of law when it is properly disaggregated from other important and valuable conceptual furniture that may be lurking in the reader’s mind.

 

  1. The rule of law is a valuable constitutional concept, but it is essentially neutral. What that means is that assessing the compliance of a system with the rule of law is an independent exercise from assessing legal systems by reference to other important values. It is a serious conceptual mistake to conflate the rule of law with those other values, and it is an even more serious, indeed heinous, intellectual mistake to go further and to deliberately attempt to cloak those other values in the rule of law. Indeed, these kinds of covert power plays actually serve to undermine respect for the rule of law, as we are seeing in real time, because that is what happens when law is politicised and when politics is juridified.

 

  1. The startling claim of the neutrality of the rule of law - and the no less startling claim that there can be substantial compliance with the rule of law in immoral systems - constitutes a stark warning of the importance of conceptual clarity. The exercise of considering the rule of law in apartheid South Africa, say, is intellectually useful precisely and only because conducting it helps to prevent the erroneous conceptual conflation of the rule of law and other values in our thinking. It absolutely is not because we should waste time seeking to gradate such compliance in actually immoral systems. It is an intellectual and illustrative thought experiment, nothing more.

 

The knife analogy

 

  1. Raz is fully cognisant of the sheer intellectual difficulty of correctly keeping the concept of the rule of law separate from other liberal nostrums. Fortunately, he supplies a vivid analogy to help keep the different aspects of our conceptual architecture distinct in our minds. He explains that the relationship of the rule of law to a legal system is analogous to the concept of ‘sharpness’ in relation to a knife.

 

  1. The sharpness of a knife tells you nothing about the use to which it is put. There is no necessary correlation between how sharp a knife is and the goodness or badness of the purpose for which it is deployed. A scalpel is exceptionally sharp and is designed to be used for morally good purposes by a surgeon operating to save the life of a patient. Equally, a very sharp knife can be used to murder someone, and the sharper it is the better it would be at carrying out that murderous intention. In that sense, it would thus be a ‘good’ knife. The scare quotes are necessary because it jars to think of a knife being ‘good’ in that way, but the point is precisely that the sharpness of the knife is a neutral feature of the knife itself.

 

  1. Similarly, the rule of law is a neutral feature of a legal system. The law can achieve many positive goals. It can also achieve morally pernicious goals. In South Africa under apartheid, the law was used to enforce racial segregation amongst many other morally unforgiveable purposes.  19th century America saw judges implement morally disgraceful laws requiring, for example, the return of escaped slaves to the South from the North. These laws were open, stable, clear, and all the rest, as well as being passed by institutions and a system where there was access to the courts, and those courts had review powers and so on.

 

  1. To modern eyes, these laws were manifestly immoral in their intent, meaning and implementation but the application of these provisions was not intrinsically more or less compliant with the rule of law than divers legal norms in our own system - some of which will no doubt be subjected to searing critique themselves in generations to come. This latter point is also easily missed, despite the brilliance of the explanation of ‘the fact of their fallibility’ by the spiritual prophet of liberalism, JS Mill in On Liberty. Indeed, one of the most celebrated contributors to the modern rule of law debate, Lord Bingham, was himself guilty of this egregious philosophical error in his book, when he posed a question to critics, somewhat rhetorically: ‘which of the [ECHR] rights discussed above would you discard?’.

 

  1. JS Mill is crystal clear as to why this is such a fundamental conceptual mistake.

 

Every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present.

 

  1. The point of this Millian view is to illustrate that we cannot lightly dismiss the level of rule of law compliance, or non-compliance, in allegedly pernicious regimes. We must resist glib attempts to discount these examples as being irrelevant just because we can point out examples of immorality, by our standards, in such countries or eras. It is common to latch onto the differential and arbitrary application of the criminal law by the police, prosecutors and courts in apartheid South Africa, for example, to deny that they actually complied with the rule of law. Such dismissals must be countered by the disturbing observation that our current culture is accused of a similar failure. Indeed, it is currently accused of such a failure by both ends of the political spectrum – and that is before even mentioning the Post Office prosecutors. If we want to dismiss apartheid South Africa from consideration as a fundamentally rule of law compliant legal system, then we risk being similarly dismissed ourselves.

 

  1. We should beware, then, siren calls to conflate the rule of law with a relatively niche, but currently fashionable, set of moral dogmas.  Still less, perhaps, should some seek to impose their contested values by cloaking them in legal garb and inflicting them on an increasingly recalcitrant populace. Such matters are the stuff of moral, political and constitutional debate, and their resolution should be kept firmly away from the lawyers, the courts and the rule of law, especially in a political constitution at the centre of which is the great debating chamber of the nation.

 

The rule of law, by contrast with the sovereignty of parliament, is not absolute

 

  1. The rule of law is not fundamental to the UK constitution, at least not in the way that the sovereignty of parliament most certainly is. Parliamentary sovereignty is absolute. Acts of Parliament are the supreme law and must be obeyed. The rule of law, in stark contrast, is ‘a matter of degree’, as Raz argues, and must be ‘balanced against competing claims of other values’ because it is ‘just one of the values the law should possess’. In other words, the rule of law can justifiably be sacrificed on occasions when more important values are at stake.

 

  1. The infamous Burmah Oil case saw the courts unexpectedly award compensation for damage caused abroad during World War II. It was rapidly realised that if this outcome were to be applied more widely, the government could be bankrupted. Parliament therefore retrospectively annulled such claims with some alacrity through the War Damages Act 1965 to avoid the deleterious potential fiscal consequences. This was a flagrant breach of the rule of law. There was rightly no breath of a contest between the sovereignty of parliament in passing such an Act, and the significant breach of the rule of law inherent in its application. The rule of law is just one amongst many important constitutional values, but it is obvious that it is neither fundamental nor absolute. It must bend the knee to a democratic parliament, when necessary, acting ethically in the national interest.

 

Conclusion

 

  1. The rule of law cannot sensibly be understood if it is inappropriately expanded to include conceptual furniture dear to those seeking to promote their particular and eclectic set of contentious moral and political values. On the contrary, its application is neutral, and it is frequently possible to illustrate this by observing substantial compliance with the rule of law in morally bankrupt legal systems. We must avoid the fundamental conceptual error made by those seeking to smuggle in their favoured values within the capacious cloak of the rule of law. This chicanery must be continually resisted, not least - indeed especially - when such subterfuge is attempted by silkily persuasive legal sirens.

 

  1. The views expressed in this submission are personal to the author and should not be taken to reflect the views of the University of Bristol.

 

22 April 2025