The rule of law is one of the most familiar catchphrases in the legal lexicon. But like other familiar catchphrases, it is frequently deployed without a great deal of thought about what it actually means.

It’s a concept which can be invoked with equal solemnity by President Biden and President Putin, by President Mugabe and Mrs Thatcher, by President Khatami of Iran and President von der Leyen of the European Union. It must therefore have a certain degree of elasticity.

All of these very different regimes and personages claim to be governed by the rule of law. The question which divides them is the place of rights in their view of the world. And that is the question which I want to explore.

It has become traditional to refer to the rival views about what the rule of law is as the thin definition and the thick definition. So I will adhere to that tradition for the moment. The thin definition is essentially procedural. It would require only that the laws should be publicly accessible, should not be retrospective and should apply generally – ie, to the ruler as well as the ruled.

The thick definition, by comparison, would require the law to have some substantive content conferring a minimum of rights on individuals. Those rights are generally identified with those proclaimed in the classic human rights instruments the United Nations Declaration, Universal Declaration of Human Rights and in Europe, perhaps elsewhere, the European Convention on Human Rights.

Now, of course, this is a gross oversimplification. There are plenty of positions in between, but it will do for the moment. Until recently, the thin definition held the field. The phrase ‘the rule of law’ was, in fact, first coined by the Victorian constitutional scholar Albert Venn Dicey. Dicey’s great work on the law of the constitution was published in 1885 and remained the bible of English constitutional lawyers for many years. His definition of the rule of law was entirely procedural. It meant that nobody could be penalised except in accordance with some established legal rule and that nobody was above the law.

But if Dicey invented the phrase to describe what we would now call the thin definition, the actual concept was a lot older. It dates back at least to Aristotle, who distinguished between the rule of laws and the rule of men. The rule of men depended on the changeable whims of the ruler. It was essentially discretionary and therefore arbitrary and unconfined. By comparison, the rule of law provided a common template against which to measure the conduct of everyone, including the ruler.

The leading modern exponent of the thin definition was Professor Joseph Raz. Professor Raz died last year after a distinguished career, culminating in his two decades as Professor of the Philosophy of Law at Oxford University. He was a pupil of Herbert Hart and therefore, like him, a legal positivist. In successive books and lectures, Raz taught that the rule of law meant, first, that people should be ruled by law rather than by discretion, and secondly, that the law should be such that people could be guided by it.

In other words, it should be stable, publicly accessible, clear, not retrospective and applied by independent judges in accordance with fair procedures. But that was all. In Raz’s view, the rule of law had no substantive content at all. The rule of law was not, he thought, necessarily the same thing as the rule of good law. It should not therefore be confused with democracy, justice, equality or human rights.

These might be entirely admirable values in themselves, but they were not implicit in the rule of law, and Raz took this to its logical conclusion. He famously observed that a state which instituted slavery by statute would be a wicked state, but it would not infringe the rule of law.

Prevailing definition

The thick definition became increasingly influential after the end of the Second World War as a result of attempts to codify fundamental human rights. This was largely a reaction against the atrocities of the totalitarian regimes of the wartime and pre-war period, notably Nazi Germany and Soviet Russia. One of its earliest and most expansive formulations can be found in the 1959 statement of the International Congress of Jurists meeting in Delhi. This declared that the function of a legislator in a society governed by the rule of law was “to create and maintain the conditions which will uphold the dignity of man as an individual”. That dignity, they continued, “requires not only a 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”.

Now, the thick definition of the rule of law is probably the prevailing definition today. It is endorsed by most common law judges who have considered the question at all. Lord Bingham, a former senior law lord in the United Kingdom, was the author of one of the most ambitious modern attempts at a comprehensive definition of the rule of law. In his book The Rule of Law, published in 2010, he argued that the rule of law embraced the entire code of rights contained in the European Convention on Human Rights, essentially on the ground that they were to be regarded as the basic entitlements of a human being.

In New Zealand, substantially the same view was expressed in a notable lecture delivered two years ago by Justice Susan Glazebrook. She considered that the rule of law was the guiding principle so long as it included, among other things, human rights and redress for historical disadvantage. The rule of law, she suggested, was a catch-cry for a better and more just world.

Now, these statements, like the Delhi Declaration of 1959, suggest that the rule of law requires one to treat law not just as a framework for decision-making, but as an active agent of social change. The problem is that when an idea like the rule of law acquires supreme intellectual prestige, there is a natural tendency to expand its meaning so as to embrace all sorts of other things that we would like to have, but which may be a lot more controversial. And that is what has happened to the concept of the rule of law.

As a result, we are in danger of becoming the prisoners of artificial categories and of asking the wrong question. The question I suggest is not what label to attach to some rights of the citizen against the state. The question is what rights are truly fundamental to the subsistence of civil society so that they should be placed beyond the reach of political choice. Now, if that sounds a bit vague, I will try to give it a more precise shape in due course. I would suggest that it’s necessary to start from first principles. The rationale of the Universal Declaration of Human Rights is that there are certain inalienable rights which are inherent to human beings simply by virtue of their humanity. That was also, of course, Lord Bingham’s view. Now, I find that view difficult to accept for three overlapping reasons.

The first is that rights do not exist in a vacuum. Rights are the creation of law and law is a product of social organisation. It is therefore necessarily, as it seems to me, a matter of collective political choice. Secondly, rights are claims against society. They imply corresponding duties on the part of the claimant’s fellow citizens. Morally, I think that requires a measure of consent by those on whom these duties are being imposed. Again, that depends on political choice. But thirdly, laws are, among other things, an expression of collective values in the society which makes them. They are not an expression of humanity at large. Humanity is not a uniform product. Human societies have their own historical experience, their own political traditions, their own social conventions and their own moral and religious values. They do not all have the same basic legal needs or priorities and should not necessarily be expected to confer the same rights simply on the basis that they have the common feature of comprising human beings.

The challenge

Now, I regard these points as obvious, but I recognise that they are not beyond challenge. The most ambitious and brilliant challenge has come from the Anglo-American legal philosopher Ronald Dworkin. Dworkin was one of a number of philosophers of the post-war period who tried to find an objective test for determining what moral claims human beings have against the societies to which they belong.

He was, together perhaps with John Rawls, perhaps the best known of these philosophers. Dworkin argued that there were binding principles of public morality which were objectively true and should be enforced by judges independently of the choices or opinions of the societies which they served. These principles of public morality, he said, would be just as true even if nobody believed in them or even knew about them.

It might be difficult to know what the correct principles of public morality were. But, like the truth about the origin of the universe or the composition of the stars, the truth about moral principles exists somewhere out there. And because they exist independently of human institutions and human choices, they are necessarily fundamental.

Now, as a rhetorical tour de force, Dworkin’s books and lectures are in a class of their own. But I do not accept his central thesis. Moral principles don’t exist in a vacuum any more than rights do. They are products of the human mind. They are inherently sensitive to experience and to the premise, often instinctive, from which one starts. In what sense can such principles be said to exist independently of the opinions and choices of men and women? How are we supposed to determine objective truth in an area which is so redolent of subjective judgment, imperfect observation and flawed reasoning?

But I think the main problem about Dworkin’s arguments is a different one. They do not cater for the possibility of disagreement. There are profound differences of opinion among serious analytical thinkers as well as ordinary citizens about what the true moral principles are. Dworkin reasons his way towards a number of moral rules. But if we disagree with his premise or his reasons or his conclusions, how are we supposed to resolve the difference?

All laws require some source of legitimacy. We have to have a reason for complying with laws that we disagree with, other than the prospect of state coercion. In a democracy, the legitimacy of laws depends on their having been enacted or approved by some accepted legislative authority – ie, by collective choice. If you want to create a body of law that is independent of collective choice, you have to identify some other source of legitimacy apart from the institutional mechanisms and arrangements by which we have chosen to be governed. There’s got to be some transcendent authority independent of our political institutions.

Now, in a more religious age than ours, this was a very simple matter. Rights were part of the moral law ordained by God in a totalitarian state. Rights, so far as they exist at all, are ordained by the ruling group in accordance with its ideology. But in a secular democracy, what is it that makes rights legitimate, if not political institutions? The truth is that when we speak of some rights as being inherent in our humanity, we are only making a rhetorical statement that we attach particular importance to them. We think they are so fundamental and so widely accepted that they should be above legitimate political debate.

Almost all of us believe that there are some rights in that category but the idea actually works only if they are both truly fundamental and generally accepted. If there is room for disagreement about what the moral principles are, then we have to have a political process for resolving that disagreement. In that case, they cannot be beyond legitimate political debate or institutional choice.

Fundamental rights

Not all human rights are fundamental to the subsistence of civil society. We have to distinguish between those rights which are truly fundamental and indispensable and those which are just a good idea. Now, I have argued so far that rights are the creation of social institutions. They depend on political choices that human beings make through their machinery for collective decision-making. And that, I think, brings us closer to a test for deciding what rights are really fundamental.

I would identify two categories of fundamental rights. First of all there are rights without which life would be nothing more than a crude contest in the deployment of force. So, freedom from coercion without established legal authority, freedom from arbitrary detention, from physical violence, from injury or death, recourse to an impartial and independent tribunal for the purpose of enforcing those rights.

Now, those are rights which are clearly implicit in the rule of law. They are quite close to Professor Raz’s thin definition but I think there is a better way of explaining them and that is that they are rights without which social existence and civil society are not possible. If life is simply a contest in the deployment of force, then there is no society. The basic bonds of human solidarity which make a society do not exist in those conditions.

Now, there is a second category of rights which I would also regard as fundamental and that comprises rights without which our society can exist but cannot function as a democracy. I don’t, as it happens, believe that democracy is a necessary part of the rule of law. Britain enjoyed the rule of law long before she was even a limited democracy and the same is true of most western countries. They had orderly systems of law before they ever had universal suffrage.

But I add this second category for this reason: the distinction between rights which are fundamental and those which are merely optional is only relevant in a democracy. That is because the reason why we make this distinction at all is that we believe that some rights should be protected against encroachments by populist politicians and by other critics who may be able to garner majority support among the electorate.

The Federalist papers which Alexander Hamilton, James Madison and John Jay wrote in order to promote the ratification of the 1787 Constitution of the United States, remains to this day amongst the most influential analyses of this dilemma. They were concerned with the need to place constitutional limits on the measures which an elected majority might otherwise be able to force through.

Hamilton and his colleagues were mainly troubled by debt-forgiveness statutes which a number of states had passed in 1787. In the past century, we have had plenty of reminders of much more extreme measures which democratic majorities can authorise. To take an extreme case, Hitler in Germany and Marshal Petain in France were both granted irrevocable power by democratic majorities, even in less extreme circumstances. Democratic legislatures have authorised a variety of arbitrary or oppressive laws.

These cases have provoked demands that some rights should be placed beyond the limits of democratic choice. So I would add to the category of fundamental rights freedom of thought and expression, assembly and association and the right to participate on equal terms with everyone else in regular and fairly conducted elections.

It also, I think, follows that people must have sufficient liberty to be able to exercise those particular rights. Now, I don’t think these rights are part of the rule of law but they are fundamental for the same reason as the rule of law is fundamental. They are the necessary foundation of every human society founded on democratic decision-making. Everything else apart from those two categories is open to argument and therefore properly the subject of democratic choice through a political process. They are optional rights which may be desirable but are not fundamental. I am conscious that that is a more limited view of the role of fundamental rights than many people would wish. It leaves out many things which they would regard as important: privacy, race relations, penal policy, immigration, education, social benefits to name only some of those which have proved most controversial. The Universal Declaration of Human Rights includes in its catalogue of human rights a right to social security, to fair remuneration for work done and an adequate standard of living and free education. Those are admirable aspirations. They are highly desirable objectives. But in a democracy they have to depend on political choice because otherwise almost all social policy would be determined by the courts rather than the political forum of the nation.

Entrenchment

Now, these questions are particularly relevant in the United Kingdom and New Zealand. Apart from the rather anomalous case of Israel, we are the only states in the world without a written constitution or any other legally entrenched code of fundamental law. Both of our countries accept the unlimited legislative sovereignty of Parliament. Neither has a written constitution which can limit the way that Parliament legislates in both countries. Calls for one have so far garnered only limited support.

However, both the United Kingdom and New Zealand have in practice achieved some degree of entrenchment for human rights by adhering to international treaties which binds them as a matter of international law, even if they are not incorporated into domestic law. Indeed, the UK has gone further by conferring a supervisory jurisdiction on institutions standing outside its constitutional order. The law of the European Union prevailed over domestic law, including Acts of Parliament, between 1973 and 2020. The decisions of the Court of Human Rights in Strasbourg do not prevail over Acts of Parliament but they do prevail over every other source of domestic law. And by convention, statutes which are found to be inconsistent with them are amended in order to make them conform.

Now there are, I think, good reasons why a democracy should take a narrower view of fundamental rights than the Universal Declaration and should be extremely cautious about entrenching rights. International human rights are generally born of a suspicion of democratic decision-making. Those who would like to see rights to a better world given fundamental status generally do so because they fear that democratic electorates will never be morally pure enough to adopt them voluntarily. Of course their fears are, in one sense, justified. The decisions of voters are not morally pure. They are based on a variable mixture of wisdom and folly, of prejudice and understanding, of idealism, pragmatism and self-interest that cannot, I think, be a good enough reason to constrain the choices of voters by law.

Open to dispute

The interests and opinions of citizens conflict. It’s selfevident that we cannot all have our own way. What we can expect is that the decision-making process will treat our various interests and opinions with equal consideration and respect. That is achieved by giving all of us an equal share in decision-making even if, as individual voters, our personal influence on the outcome is minimal. A constitution that was based not on democratic choice but on some embedded scheme of values such as human rights, Islamic political theology or the dictatorship of the proletariat, to take three possibilities, would not achieve that. It would privilege those citizens who happened to agree with those values. It might not matter if the values in question were almost universally accepted. But outside the two categories of truly fundamental rights which I have already sought to identify, rights are necessarily open to dispute and frequently are hotly disputed.

In practice, disputable rights cannot be truly fundamental. In sum, what I would suggest is that the essence of democracy is not moral rectitude – it is participation. The proper function of a constitution is to determine how we participate in the decisionmaking process but not what the outcome has to be. Whether voters act from good or bad motives is not the point. We can’t make a constitution for some fantasy world in which people are without prejudices or indifferent to their own personal interests. All that a political system can realistically aspire to do is to provide a method of decision-making that has the best chance of accommodating disagreements between citizens as they actually are, with all their vices and self-interests. That calls for a political process in which every citizen can engage and whose results, however imperfect, are likely to be acceptable to the broadest possible range of interest and opinion.

Now that, to my mind, is a much more important priority for a political community than finding some objectively-just answer to its moral dilemmas. Legally entrenched rights marginalise the political process. They involve the creation of a class of rights whose existence and extent are not to be determined by unfettered political choice.

That has very serious implications of which our societies are not, I think, sufficiently conscious. We have to have a minimum of fundamental rights in order to function as a democracy. That I accept. But if we place too many rights beyond the limits of democratic choice, then we cease to be a democracy just as surely as if we had no rights at all.

The debate about abortion in the United States conveniently illustrates some of these themes. Personally, I am in favour of a regulated right of abortion, but I would question whether it can be treated as a fundamental right, displacing legislative or political choices.

Abortion was once just as controversial in Britain as it still is in the United States. After extensive parliamentary debate, it was introduced by ordinary legislation in 1967 within carefully defined limits and subject to a framework of clinical regulation. The same pattern was followed in the whole of the rest of Europe, where all but one state has now legislated for regulated rights of abortion. New Zealand legislated for abortion in 1977 and more extensively in 2021.

The reason why abortion remains so controversial in the United States is that it was introduced as a judicial interpretation of the US Constitution – in other words, by a method which relegated the wider political debate among Americans to irrelevance. This means that a framework of clinical regulation was hard to achieve because it would operate to limit a constitutional right.

The justification commonly put forward for treating such matters as constitutional issues is that it protects minorities against majoritarian tyranny better than a democratic legislative process. I would question whether there is any factual basis for this assumption. In stable democracies, what constitutes majoritarian tyranny very much depends on how you define your majority and what you regard as tyranny, except perhaps in classical discrimination cases, where the animating principle is to treat like cases alike.

There are no legal standards by which these questions can be answered. The only available standards are political standards. Experience suggests that judges charged with making essentially political decisions are no more likely than professional politicians to make enlightened ones. But there’s also perhaps a wider issue, namely, whether it is wise to make law in a way which marginalises the choices of the electorate.

In the US it has done enormous political damage, polarising opinion and turning presidential elections into contests for the right to appoint suitably biased Supreme Court justices. In our societies we have, I think, too much confidence in law as the agent of social change. We need to value and defend truly fundamental rights, but we also need to understand the moral and practical limits of what law can achieve in a democratic society.

In the end, law simply has no answer to the problem of majoritarian tyranny, even in a system of perfectly entrenched constitutional rights like that of the United States. Law can certainly insist that public authorities have some legal basis for everything that they do. Law can supply the basic level of security on which civilised life depends. It can protect minorities identified by some personal characteristic, such as gender, race or sexual orientation, from discrimination.

But what law cannot do is to parry the broader threat that legislative majorities will act oppressively unless judges assume legislative powers for themselves. The only effective constraints on the abuse of democratic power are political. They depend on a culture of active citizenship, on a shared culture of political sensitivity, and on the capacity of representative institutions to perform their traditional role of accommodating division and mediating dissent.

Politics may be a dirty word, but the alternative to politics is a great deal worse: dysfunctional communities, lacking the cohesion to meet any of their social or economic challenges and exposed to mounting internal and external violence in the United States. This is a potential catastrophe in the making that we can see.

There is nothing that law can do about that. As Montesquieu pointed out some three centuries ago, the spirit of the law matters a great deal more than anything that law can ever really guarantee.

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