What is the Rule of Law?
The Rule of Law is an ideal about the way our society should run to ensure equality and fairness to all people. It is the best protection of human rights and provides a safe and stable community for all members. At its most basic level, the rule of law is the concept that both the government and citizens know the law and obey it.
The three principles of the Rule of Law are laws that are certain, general and applied equally. The Rule of Law Wheel illustrates how these principles require institutions, checks and balances and a supportive culture to uphold and protect the rule of law and threats to human rights and freedoms.
Where there is no rule of law, arbitrary rule can take over in the form of authoritarianism or anarchy. Important checks and balances are notably absent under these conditions encouraging corruption and violence, resulting in dangerous and unpredictable societies.
The Rule of Law Defined
A good definition of the rule of law that has near universal acceptance states
“…most of the content of the rule of law can be summed up in two points:
(1) that the people (including, one should add, the government) should be ruled by the law and obey it and(2) that the law should be such that people will be able (and, one should add, willing) to be guided by it.”
The Rule of Law Simplified: The Rule of Law Wheel
The relevance of the rule of law, and an understanding of its concepts, has its origins in the Magna Carta and the Rule of Law Education Centre uses the Rule of Law Wheel to start discussion about the question “What is the Rule of Law?”
Central to the wheel and the rule of law is the concept that no one is above the law – it is applied equally and fairly to both the government and citizens. This means that all people, regardless of their status, race, culture, religion, or any other attribute, should be ruled equally by just laws.
Beyond this, the outer edge of the wheel illustrates a number of interrelated principles that reflect the rule of law in Australia, such as the presumption of innocence, and fair and prompt trials.
These principles can be considered essential elements that contribute to maintaining the rule of law. Without these, the wheel would fail to turn and Australia’s rule of law would not continue to be upheld and maintained.
Another essential element is that these principles and Australia’s rule of law is supported by informed and active citizens. Without responsible and engaged citizens, society is unable to work together to uphold important principles and values which support our rule of law and democratic society.
The Three Principles of the Rule of Law
Principle 1: Laws must be certain
“No one in authority has the right to create a new law for a particular case … the laws must be enacted ahead of time.. The laws should be public so people know what they are“
– Walter Sofronoff KC.
Laws must not be enforced and applied retrospectively, meaning a person can only be punished or bring a civil action according to the law at the time.
Mr Walter Sofronoff KC Explains the 3 Principles of the Rule of Law
Principle 2: Laws must be general
“Laws should apply to everyone in the same way, and should be directed to everyone generally”
– Walter Sofronoff KC.
However, there may be exceptions where special rules are needed for particular groups of people, including groups such as the Police, non-Australian Citizens and children. These special rules are justified as the differences between these groups of people rationally call for different treatment.
Principle 3: Laws need to be applied equally
“The law is applied to everyone in the same way to whom it applies”
– Walter Sofronoff KC.
As the law is applied to everyone equally, there needs to be someone who will use it equally and take no part in creating the law they are applying. There needs to be a separation between people who make the law and people who apply the law.
The Importance of the Rule of Law for Society
The rule of law is essential in maintaining a free, democratic and fair society.
At its heart, the Rule of Law is an ideal or an aspiration, that members of a society must continuously work towards to protect the rights and freedoms of all people. As seen in the Rule of Law Wheel above, it is not simply the government and citizens knowing and obeying the law. The Rule of Law requires individuals, institutions and processes to protect human rights.
A country that operates under the rule of law will have the following:
- All persons and organisations including the government subject to and accountable to the law
- The law is known and accessible
- The Court system is independent and resolves disputes in an open and impartial manner
- All persons are presumed innocent until proven otherwise by a Court
- All persons have the right to a fair and prompt trial
- No person should be arbitrarily arrested, imprisoned, or deprived of their property
- Punishment is determined by a Court and people can only be punished in accordance with the law.
The legacy of the Rule of Law comes from the Magna Carta and the idea that all citizens, including the Kings, should be fairly and equally ruled by the law.
The Magna Carta ensured the King was no longer above the law, people were ruled by the law and the law alone, there was a qualified Independent Judiciary, confidence in Fair Process, and the law was known by all.
Judge Culver of the District Court of NSW outlines the essential features of the rule of law and then illustrates what a society looks like without the rule of law in action. Her Honour outlines a fictional case of an overseas tourist being given a package by a stranger. She looks at differing treatment by the police and courts depending on whether the country has the rule of law and how that impacts the accused’s access to justice.
Rule of Law Video
This video introduces the concept of the rule of law and provides some examples of ways in which the concept supports fairness and certainty in the legal system.
Lecture Series with Kevin Lindgren AM QC
The Hon Kevin Lindgren, former Justice of the Federal Court of Australia, was appointed Adjunct Professor of the rule of law at the University of Sydney in 2012. He has lectured extensively on the concept of the rule of law and has produced a paper entitled ‘The Rule of Law: Its State of Health in Australia‘.
Professor Lindgren’s other lectures include: