A Citizen’s Guide to the Rule of Law

Last year, Peter Biro of Section1 asked me to contribute a chapter on the Rule of Law for the book he was putting together. The book, Constitutional Democracy under Stress: A Time for Heroic Citizenship, is going to be available in the second week of August, but, with Mr. Biro’s kind permission, you can read my contribution, “A Citizen’s Guide to the Rule of Law“, now ― and for free. It’s meant to be a relatively concise and accessible introduction to the concept of the Rule of Law and to the main strands of scholarship about it, as well as an examination of whether Canadian law actually lives up to the Rule of Law’s requirements. Here is an abstract:

This chapter sets out, for both a generalist and a legally trained readership, the basic contours of the Rule of Law as a legal and political ideal, with a special focus on the ways in which ideal is understood and implemented in the Canadian legal system. It begins by explaining why law is necessary, and why it must bind both government and individuals. A review of three key themes around which the understanding of the Rule of Law is often organized in scholarship follows. The first of these themes is the form that the law, especially legislation, takes. The second is the process by which law is made and enforced by legislatures, the courts, and the administrative state. The third is the possibility that the Rule of Law may impose constraints on the substance of the laws, especially in order to protect fundamental individual rights. The chapter concludes by arguing that adherence to the Rule of Law is the only way in which the exercise of power can be contained and the arbitrariness inherent in it in the absence of law can be counteracted.

The reason for writing this chapter (other than that Mr. Biro asked me to do it) is that too many people ― up to and including at least a couple of Supreme Court judges ― don’t seem to understand what the Rule of Law is and why it matters. I write in the introduction, the Rule of Law is paired with “the supremacy of God” in the preamble to the Canadian Charter of Rights and Freedoms and

there is indeed something theological about the reverence with which some lawyers speak of the Rule of Law, and … it too is an elusive and mysterious idea—and one, moreover, that induces as much impatience in those not converted to it as any religious dogma. (104)

The reason for this impatience is that, however dimly they understand it, the Rule of Law’s detractors ― from absolutist kings to populist politicians to the judges who would abet the ones or the others ― realize that it is a break on the exercise of political power. As I explain in the conclusion of the chapter,

It is precisely the constraint that law represents that so infuriated James I … and that infuriates his spiritual descendants, as impatient as he of limits on their ability to do what they are convinced is right and necessary or just. Be they administrators on a mission to rationalize and organize society, do-gooders on a quest for equality, or patriots in pursuit of national greatness, they resent their inability to act without prior authorization; they chafe at the need to give those unwilling to be organized or equalized opportunities to challenge their commands; they would disregard ancient rights in the pursuit of the greater good. They wish they could do what they believe is necessary, right, and just. (120)

Yet power, as I have explained here, here, here, here, and here, corrupts. It must be kept in check. The Rule of Law is necessary for us to be able to do so. It is, in a real sense, a victim of its own success: people in Western democracies have forgotten what life without the Rule of Law is like, so they speculate about its being dispensable. But no one among those engaged in such speculation would want to live without the Rule of Law. If it sometimes gets in the way of their, and our, good intentions, this is a price well worth paying. I hope you read my chapter to understand, or better yet to simply remind yourselves, why this is.