Kriszta Kovács

INTRODUCTION TO

THE RULE OF LAW CONSTITUTIONALISM

IRB108
2022/2023 SPRING SEMESTER
 THE ORIGINS
❖ ARISTOTLE: ‘IT IS BETTER FOR THE LAW TO RULE THAN ONE OF THE CITIZENS, … SO
EVEN THE GUARDIANS OF THE LAWS ARE OBEYING THE LAWS’.
❖ DICEY:
❖ 1. ‘NO MAN IS PUNISHABLE OR CAN LAWFULLY BE MADE TO SUFFER IN BODY OR
GOODS EXCEPT FOR A DISTINCT BREACH OF LAW ESTABLISHED IN THE ORDINARY
LEGAL MANNER BEFORE THE ORDINARY COURTS OF THE LAND’ - NO MAN IS ABOVE
THE LAW
❖ 2. ‘EVERY PERSON, WHATEVER BE HIS RANK OR CONDITION, IS SUBJECT TO THE
ORDINARY LAW OF THE REALM AND AMENABLE TO THE JURISDICTION OF THE
ORDINARY TRIBUNALS’ - ALL ARE SUBJECT TO THE SAME LAW ADMINISTERED IN THE
SAME COURTS
❖ 3. ‘GENERAL PRINCIPLES OF THE CONSTITUTION … ARE WITH US THE RESULT OF
JUDICIAL DECISIONS DETERMINING THE RIGHTS OF PRIVATE PERSONS IN PARTICULAR
CASES’ - PRINCIPLES GUIDE THE LAW APPLICATION
 CRITICS, SCEPTICS
❖ ‘A SHORTHAND DESCRIPTION OF THE POSITIVE ASPECTS OF ANY
GIVEN POLITICAL SYSTEM’ (JOSEPH RAZ)
❖ ‘MEANS LITTLE MORE THAN HOORAY FOR OUR SIDE’ (JEREMY
WALDRON)
❖ ‘AN EXCEEDINGLY ELUSIVE NOTION’ AND ANALOGOUS TO THE
NOTION OF THE GOOD IN THE SENSE THAT ‘EVERYONE IS FOR IT, BUT
HAVE CONTRASTING CONVICTIONS ABOUT WHAT IT IS’ (BRIAN
TAMANAHA)
❖ ‘JUST ANOTHER ONE OF THOSE SELF-CONGRATULATORY RHETORICAL
DEVICES THAT GRACE THE PUBLIC UTTERANCES OF ANGLO-
AMERICAN POLITICIANS’ (JUDITH SHKLAR)
 BUT…
❖ REFERENCES TO THE RULE OF LAW ARE NOW EMBEDDED IN
INTERNATIONAL INSTRUMENTS OF HIGH STANDING
❖ ‘ESSENTIAL, IF MAN IS NOT TO BE COMPELLED TO HAVE RECOURSE, AS A

LAST RESULT, TO REBELLION AGAINST TYRANNY AND OPPRESSION, THAT

HUMAN RIGHTS SHOULD BE PROTECTED BY THE RULE OF LAW’ (UNDHR)
❖ ‘A COMMON HERITAGE OF POLITICAL TRADITIONS, IDEALS, FREEDOM

AND THE RULE OF LAW’ (ECHR)

❖ ‘THE UNION IS FOUNDED ON THE VALUES OF RESPECT FOR HUMAN

DIGNITY, FREEDOM, DEMOCRACY, EQUALITY, THE RULE OF LAW AND

RESPECT FOR HUMAN RIGHTS, INCLUDING THE RIGHTS OF PERSONS
BELONGING TO MINORITIES.’ (TEU)
❖ JUDGES REFER TO THE ROL WHEN GIVING THEIR JUDGMENTS IN MANY
COUNTRIES (RECHTSSTAAT, ÉTAT DE DROIT)
 THE CORE
ALL PERSONS AND AUTHORITIES SHOULD BE BOUND BY AND
ENTITLED TO THE BENEFIT OF LAWS PUBLICLY MADE, TAKING
EFFECT (GENERALLY) IN THE FUTURE AND PUBLICLY
ADMINISTERED IN THE COURTS

JOHN LOCKE ‘WHEREVER LAW ENDS, TYRANNY BEGINS.’

NOT UNQUALIFIED ADMIRATION OF THE LAW

BUT WE’D RATHER LIVE IN A COUNTRY THAT COMPLIES OR AT

LEAST SEEKS TO COMPLY WITH THE PRINCIPLE
 ACCESSIBILITY
❖ WE CANNOT BE DISCOURAGED TO BEHAVE CRIMINALLY IF WE
DO NOT KNOW WHAT IT IS WE SHOULD NOT DO

❖ IT IS IMPORTANT TO KNOW WHAT OUR RIGHTS OR

OBLIGATIONS ARE TO PERFORM A DUTY

❖ TO HAVE A SUCCESSFUL TRADE, INVESTMENT AND BUSINESS,

WE NEED TO HAVE ACCESSIBLE LEGAL RULES ON
COMMERCIAL RIGHTS AND OBLIGATIONS

❖ SO: PEOPLE SHOULD BE ABLE TO FIND OUT WHAT THE LAW IS

 LAW, NOT DISCRETION

❖ DISCRETIONARY DECISION-MAKING OPENS THE DOOR TO
ARBITRARINESS (E.G., AUTHORISING THE PM TO AMEND OR
DISAPPLY AN ACT OF PARLIAMENT)
❖ EXAMPLE: PARLIAMENT ENACTS A SCHEME FOR THE
MAKING OF GRANTS TO PERSONS WHO HAVE A DISABILITY,
STIPULATING THAT DECISIONS ON ELIGIBILITY SHALL BE
MADE BY LOCAL OFFICERS AND SHALL NOT BE
CHALLENGEABLE IN THE COURTS
 EQUALITY BEFORE THE LAW
❖ THE LAW SHOULD APPLY
EQUALLY TO ALL
❖ THE DIFFERENTIATION MUST
BE JUSTIFIED
❖ THE LAW CAN TREAT PEOPLE
DIFFERENTLY IF THEIR
POSITIONS OR SITUATIONS
ARE GENUINELY DIFFERENT
 THE EXERCISE OF POWER
❖ IN GOOD FAITH, FAIRLY, FOR THE PURPOSE FOR
WHICH THE POWERS WERE CONFERRED, WITHOUT
EXCEEDING ITS LIMITS AND NOT UNREASONABLY
❖ COURTS ENFORCE COMPLIANCE WITH THE LAW:
JUDICIAL REVIEW
❖ PARTICULAR DECISIONS SHOULD ALSO FOLLOW THE
LAW
 HUMAN RIGHTS
❖ THIN ROL: ‘A NON-
DEFINITION OF THE
DEMOCRATIC LEGAL SYSTEM, BASED ON THE
DENIAL OF HUMAN RIGHTS, ON EXTENSIVE
POVERTY, ON 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. IT WILL BE AN IMMEASURABLY
WORSE LEGAL SYSTEM, BUT IT WILL EXCEL IN ONE
RESPECT- IN ITS CONFORMITY TO THE RULE OF
LAW.’ (JOSEPH RAZ)
❖ THICK DEFINITION OF THE ROL: THE LAW MUST
AFFORD ADEQUATE PROTECTION OF HUMAN
RIGHTS (TOM BINGHAM)
 ACCESS TO COURT AND FAIR TRIAL
❖ PEOPLE SHOULD BE ABLE TO GO TO COURT
❖ TWO ENDURING OBSTACLES: EXPENSE AND DELAY
❖ FAIR TRIAL BOTH IN CIVIL AND CRIMINAL PROCEDURES
❖ FAIRNESS TO BOTH SIDES
❖ CHANGING CONCEPT
❖ JUDICIAL INDEPENDENCE
 INTERNATIONAL RULE OF LAW
‘IT REFERS TO A PRINCIPLE OF GOVERNANCE IN WHICH ALL
PERSONS, INSTITUTIONS AND ENTITIES, PUBLIC AND PRIVATE,
INCLUDING THE STATE ITSELF, ARE ACCOUNTABLE TO LAWS
THAT ARE PUBLICLY PROMULGATED, EQUALLY ENFORCED
AND INDEPENDENTLY ADJUDICATED, AND WHICH ARE
CONSISTENT WITH INTERNATIONAL HUMAN RIGHTS NORMS
AND STANDARDS.’
(REPORT OF THE SECRETARY-GENERAL OF THE UN TO THE
SECURITY COUNCIL IN 2014)