Raphaël Grenier-Benoit – Written Evidence (ROL0080)

1. I am a DPhil candidate in Law at Balliol College, University of Oxford, and a Research Fellow at the Georgetown Center for the Constitution. My research focuses on constitutional interpretation and adjudication, and on the role of courts in liberal democracies. I make this submission in a personal capacity only. My submission will mostly focus on the first question identified by the Committee. I will begin by putting forward a conception of the rule of law, and will then proceed to defend its merits by contrasting it with an alternative account.

2. The account of the rule of law that I invite the Committee to endorse is the one articulated by Joseph Raz. Raz’s conception of the rule of law flows from the simple idea that ‘the law must be capable of guiding the behaviour of its subjects.’[1] Using that insight as his starting point, Raz identifies a (non-exhaustive) list of principles that are entailed by adherence to the rule of law.

3. The first is that ‘[a]ll laws should be prospective, open, and clear.’ The second is that ‘[l]aws should be relatively stable.’ The third is that ‘[t]he making of particular laws (particular legal orders) should be guided by open, stable, clear and general rules.’ The fourth is that ‘[t]he independence of the judiciary must be guaranteed.’ The fifth is that ‘the principles of natural justice must be observed,’ which notably require that hearings must be ‘open and fair’ and that the law must be applied without bias. The sixth is that ‘[t]he courts should have review powers over the implementation of the other principles’ to ensure that the other branches do not violate the rule of law. The seventh is that ‘[c]ourts should be easily accessible.’ The eighth is that ‘[t]he discretion of crime-preventing agencies should not be allowed to pervert the law,’ such that those agencies cannot, for example, refuse to prosecute certain categories of offenders.[2]

4. There is a clear link between those principles and the law’s capacity to guide the actions of those who are subject to it. Indeed, the first three principles ensure that subjects are able to know and follow the law, while the others ‘ensure that the legal machinery of enforcing the law should not deprive it of its ability to guide through distorted enforcement and that it shall be capable of supervising conformity to the rule of law and provide effective remedies in cases of deviation from it.’[3]

5. Such a conception of the rule of law does not require the pursuit of a set of ‘substantive ends’ through law. For example, ‘[i]t is no part of the rule of law that judges must enjoy authority to quash legislation that they think is unjust or that is somehow incompatible with individual human rights.’[4] While this might be required by the particular laws of a given legal order, it is not required by the rule of law itself.

6. In fact, a legal order could meet the requirements of the rule of law while containing norms that are misguided or immoral. As explained by Raz:

conformity to the rule of law also enables the law to serve bad purposes. That does not show that it is not a virtue, just as the fact that a sharp knife can be used to harm does not show that being sharp is not a good-making characteristic for knives. At most it shows that from the point of view of the present consideration it is not a moral good. Being sharp is an inherent good-making characteristic of knives. A good knife is, among other things, a sharp knife. Similarly, conformity to the rule of law is an inherent value of laws, indeed it is their most important inherent value.[5]

7. This is not to say that a Razian conception is devoid of moral value. As noted by Lord Sales, such a conception ‘respects the dignity of individuals and allows them to exercise agency under conditions of personal responsibility.’[6] Raz makes a similar point, and adds that ‘[o]bserving the rule of law by no means guarantees that such violations do not occur. But it is clear that deliberate disregard for the rule of law violates human dignity.’[7] In an era where, around the world, the central tenets of the rule of law are under attack, it would be a mistake to downplay the value of the Razian conception, or to take for granted the principles that define it.

8. Raz’s account is often presented as embodying the ‘thin’ conception of the rule of law, and contrasted with the one defended by Lord Bingham, who famously argues for a ‘thick’ conception. Lord Bingham’s view is that the rule of law notably requires the laws of a given polity to be directed towards certain ends, namely the protection of fundamental human rights. As Lord Bingham noted in his Sir David Williams Lecture, ‘there is […] an element of vagueness about the content of this sub-rule, since the outer edges of fundamental human rights are not clear-cut.’[8]

9. Despite its intuitive appeal, I respectfully submit that such an account ought to be rejected. While it is an understatement to say that the protection of fundamental human rights is desirable and contributes to a legal order’s legitimacy, it does not follow that it should be required by the rule of law. If an etiolated conception of the rule of law would be meaningless, an expanded one would dilute its essence. In the words of Richard Ekins:

one should avoid overweighting the rule of law, transforming it into an all-encompassing ideal about the justice of the law and the merits of each legal rule. The reason to avoid this transformation is that it dulls the sharpness of the ideal, which is valuable precisely because it picks out an important aspect of how government should be carried out.[9]

10. The rule of law is but one of the ideals that ought to shape political life. It is also only one of the many commitments that contribute to the authority of the constitutional order. While adherence to the rule of law within a given system is necessary for law to possess authority over the polity, it cannot on its own establish the law’s authority. It is necessary for judges, in their capacity as adjudicators, to make determinations in a way that enhances the authority of the constitutional order—which requires them to consider all the commitments upon which that authority rests. It would be a ‘legalistic misconception’ to assume that

the rule of law is so uniquely important that other ideals (democracy, respect for human rights, the eradication of poverty, ‘life, liberty, and the pursuit of happiness,’ solidarity, cultural diversity, etc) had better be part of it, or else be condemned to unimportance, at any rate to unimportance in the life and work of the law.[10]

Other ideals such as democracy and the protection human rights play a central role in the life and work of the law, but they remain distinct from the rule of law.[11]

11. A narrower conception of the rule of law allows for the preservation of a certain conceptual clarity. In the words of Lord Sales, ‘[i]nflating the concept of the rule of law conceals the underlying conflicts and hinders thoughtful debate about the trade-offs which are required’ when those ideals are in tension.[12] One only needs to think of democratically enacted laws that would be retroactive,[13] or of situations where the legal norms governing behaviour within a polity would be changed on a regular basis in order to respond to an unfolding crisis.

12. In such cases, other ideals could prevail over the rule of law, and the norms discussed above could be deemed valid despite them being in tension with certain rule of law principles.[14] Furthermore, it would be legitimate for judges to invoke principles that are distinct from the rule of law in justifying their decision to uphold such norms. Just like the rule of law is not the only ideal contributing to the authority of law, it is not the only consideration that judges must weigh in adjudicating cases. A ‘thick’ conception would muddy the waters by fitting them under the rule of law, whereas it is not strictly necessary for political ideals like democracy to be captured by the rule of law in order to play a meaningful role in adjudication.

13. Finally, endorsing a ‘thick’ conception of the rule of law would undermine the rule of law’s primary function, which is to reduce uncertainty regarding the content and the application of legal norms. The point is eloquently made by Lord Verdirame:

key features of the rule of law are legal certainty, clarity and predictability—that is the very first principle of the rule of law, according to Lord Bingham. By expanding the rule of law to include democracy—a list of fundamental rights that is itself unsettled and ever expanding—as well as every rule of international law, we end up with an all-encompassing, panoptic concept of the rule of law that itself becomes a source of unclarity, uncertainty and unpredictability; in other words, we end up with a conception of the rule of law that does not advance the rule of law.[15]

14. Adherence to a ‘thick’ conception of the rule of law would mark a departure from a relatively clear list of requirements aimed at ensuring that the legal system functions well qua legal system, and add a potentially shifting set of ‘substantive’ norms that judges would have a duty to enforce and develop. Such a change would generate significant tensions between the many principles that would fall under the rule of law’s umbrella and generate uncertainty regarding its requirements. Given the availability of other avenues to protect fundamental human rights and democracy, the need for conceptual clarity, and its potential adverse effect on the rule of law’s capacity to ensure that law is capable of guiding the behaviour of its subjects, I submit that adherence to a ‘thick’ conception should be avoided.

28 April 2025