Constitutional Law

The Rule of Law

Lecture Notes
4/3/02

This concept is a nebulous or vague concept with different meanings to different

people. Dicey identifies 3 basic aspects of the concept:-

1. Legal power may not be exercised arbitrarily.

2. There is no person who is above the law, i.e. every person is subject to the law.
3. Principles of fundamental rights are to be derived from the common law as
opposed to being derived from specially enacted constitutions. Here, Dicey’s
concept of the Rule of Law does not exclude the lawmakers. The Rule of Law
should be applied to the lawmakers.

Professor Wayde identifies 2 aspects as follows:-

1. Every act of governmental power must be authorized by law.
2. Government should be conducted within recognized rules and principles,
which restrict discretionary power.

An important limitation and deficiency of both the definition of Dicey and Professor
Wayde and indeed all definitions based on a system which recognized ______________
of Parliamentary sovereignty is that the rule does not apply to the exercise of legislative
governmental power.
According to Fiadjoe, the rule of law is concerned with the exercise of State
power according to law and the subjugation of State power to the Constitution. In my
view, a comprehensive definition of the Rule of Law must mean that both the rulers and
the rule, i.e. the lawmakers and the citizens, must be subject to the rule of law.
Additionally, with respect to the lawmakers, it is submitted that they ought to be subject
to the rule of law, both in terms of the content of law and the procedure of law.

(11/3/02 cont’d from 4/3/02)

Professor Craig of the University of Oxford in a 1997 Public Law article entitled
Formal and Substantive Conceptions of the Rule of Law: and Analytical Framework
discusses the concept of the Rule of Law within the context of formal and substantive
classification of the context. He articulates the distinction between these 2
classifications. “Formal conceptions of the rule of law address the manner in which the
law was promulgated (was it by a properly authorized person in a properly authorized
manner, etc?), the clarity of the ensuing norm (was it sufficiently clear to guide an
official’s conduct so as to enable a person to plan his/her life, etc?): and the temporal
dimension of the enacted norm (was it prospective or retrospective, etc?) The formal
conceptions of the Rule of Law do not however, seek to pass judgment upon the actual
content of the law itself. They are not concerned with whether the law was, in that sense,
a good or bad law, provided that the formal precepts of the Rule of Law were themselves
met.
Those who espouse substantive conceptions of the Rule of Law seek to go beyond this.
They accept that the rule of law has the formal attributes mentioned above, but they wish
to take the Doctrine further. Certain substantive rights are said to be based on, or derived
from the Rule of Law. The concept is used as a foundation for these rights, which are
then used to distinguish between good laws, which comply with such right and bad laws
which do not.”
Dicey and Joseph Raz seem to fit within the category of theorists who fall within
the formal classification mold (not concerned with the content of law). In an article
entitled The Rule of Law and its Virtue 1977 93 L.Q.R. 195, Joseph Raz seeks to justify
why the Rule of Law concept could only be usefully analyzed in the formal sense, thus:-
“If the rule of law is the rule of good law, then to explain its nature is to propound a
complete social philosophy. But if so, the term lacks any useful function, we have no
need to be converted to the Rule of Law just in order to discover that to believe in it is to
believe that good should triumph. The Rule of Law is a political ideal that a legal system
may lack or possess to a greater or lesser degree. That much is common ground. It is
also to be insisted that the rule of law is just one of the virtues by which a legal system
may be judged and by which it is to be judged. It is not to be confused with democracy,
justice, equality (before the law or otherwise) the human rights of any kind or respect for
persons or for the dignity of men.”
It is clear that these notions of Raz and others of similar views, that law can be
divorced from certain minimal moral content, such as certain fundamental or inalienable
human rights, have been firmly rejected by the vast majority of States which have written
constitutions in which certain basic rights, in one form or another, have been given
protection. Raz’s views seem to fit within the general jurisprudential framework of legal
positivism, as oppose to the natural law theories which seek to address certain minimum
standards that the content of law should contain. Raz’s concept of the Rule of Law also
includes the following requirements:-
1. That law should be prospective not retrospective;
2. They should be relatively stable;
3. That particular laws should be guided by open, general, and clear rules;
4. That there should be an independent judiciary;
5. That there should be access to the courts;
6. The discretion that the law enforcement agencies possess should not be
allowed to undermine the purposes of the relevant rules.

Dworkin embraces both formal and substantive classification of the Rule of Law, but he
emphasizes the latter since this fits within his broader theories of justice, i.e., “The courts
should be deciding legal questions according to the best theory of justice.” Dworkin
explains his substantive conception of the Rule of Law in these terms:-
“It assumes that citizens have moral rights and duties with respect to one another,
and political rights against the State as a whole. It insists that these moral and political
rights be recognized in positive law, so that they may be enforced upon the demand of
individual citizens through the courts or other judicial institutions of the familiar type, so
far as this is practical. The Rule of Law on this conception is the ideal of rule by an
accurate public conception of individual rights. It does not distinguish, as the Rule Book
conception does, between the Rule of Law and substantive justice: on the contrary it
requires, as part of the ideal of law, that the rule in the book, capture and enforce moral
rights.”
(13/3/01 Cont’d from 11/3/02)

Rule of Law- give definition based on other theorists.

It is generally agreed that the Rule of Law is an important constitutional principle.

What, however, is not agreed is what is meant by the concept in precise terms. This
disagreement is displayed in the Formalist and Substantive conceptions of the rule of law.

What, in effect, does one mean by the term law?

An understanding of law cannot be divorced from a brief theoretical or
jurisprudential discussion of what is meant by the term law, particularly law as defined
by 2 of the leading schools of jurisprudence, namely the Natural law and Positivist
Schools.
1. Formalist  Positivist
-Rule of law means RULE by ANY law once procedures for law-making
complied with.
2. Substantive Theorists  Natural law and Other theories (i.e. Dworkin justice
theories)
-Rule of law means the RULE by ONLY those laws which comply with certain
substantive principles of morality or justice.

Ouster Clauses- Negation of the Rule of Law.

A provision in the Statute or Constitution that shut out jurisdiction of the court.

(18/3/02 Cont’d from 13/3/02)

Professor Craig makes the following observations about the Formal and
Substantive conceptions of the Rule of Law:- “It should be noted that both Raz and
Dworkin actually *agree* on one important issue which is central to us here: the
adoption of a fully substantive conception of the Rule of Law has the consequence of
robbing the concept of any function which is independent of the theory of justice which
imbues such an account of law. Their fundamental disagreement concerns the very
nature of law and the role of the courts in adjudication. It is, of course, open to public
lawyers, and indeed anyone else, to choose between the contending views of the Rule of
Law presented above. Debate on this issue is helpful. It is nonetheless important to
understand the consequences of adopting a particular position on this matter. The phrase
“Rule of Law” has a power/force of its own. To criticize governmental action as contrary
to the rule of law, immediately casts it in a bad light. Such criticism may well be
warranted depending on the circumstances. Yet, if the nub of the critique is posited upon
the substantive conception of the rule of law, then intellectual honesty requires that this is
made clear, and it demands clarity as to the particular theory of justice which informs the
critique.”
One may therefore deduce the following points from the observations made by Professor
Craig:-
1. The Rule of Law, however defined, is a fundamental constitutional principle.

2. A true understanding of this concept cannot be attained without an

understanding of the various theories and issues which underlie the concept.
Thus, we must understand what are the theories and arguments both FOR and
AGAINST, which inform and challenge both the Formalistic and Substantive
conceptions of the Rule of Law:-

3. The real reasons for the different conceptions of the Rule of Law lay in “the
way in which we identify legal norms.” In the article Law, Religion and
Morality 1999 UGLR pp. 3,4 & 15, I alluded to this in these terms:- “At the
heart of this matter is the issue as to how these schools of jurisprudence
choose to define law in terms of what they considered to be good law. This
law, according to the Natural lawyer, is defined in terms of certain minimum,
moral or ethical content of law. What is more, according to Cicero, these
natural laws are capable of being discerned internally by recourse to a source
and process of rationality which all human beings possess.” Whereas for the
Positivists, “law is not defined in terms of the content of law, how it is derived
and its legitimacy, but, rather from the perspective of conforming to certain
specifically approved or accepted procedures for law making.” The point was
further made in Law, Religion & Morality, that “the problem or solution,
therefore, may lie in the selection of the particular choice. This may be
informed by non-legal considerations such as religion, morals, ethics and
ideology, etc.”

4. If you embrace a fully substantive concept of the Rule of Law alone, this will
turn the sole or main function of the debate into a theoretical/jurisprudential
discourse or disagreement. One possible implication of this, is that it may not
allow for any acceptable comprehensive solution, given the disparities of
views among theorists. Note, however, that it is possible to adopt a mixed or
harmonized position embracing both substantive and formulistic views.

5. Intellectual honesty requires that, if we are critiquing some constitutional

action on the ground that it contravenes the Rule of Law, we should state
whether we are doing so on formulistic or substantive grounds and in
identifying the specific theories underlying our objections.

What then is the position in the Commonwealth Caribbean? Do we adopt

formulistic or substantive conceptions of the Rule of Law or a mixture of
both? If both, then to what extent?
 At the formulistic or positivistic level it is easier to see evidence of this in our
case law. For instance, in the commonwealth Caribbean, if we apply Raz’s formula, we
can conclude that we generally follow certain formulistic conceptions such as:-
1. Our laws (whatever their content) both statutory and case law, are generally
prospective and not retrospective. But note that that there is nothing which stops
Parliament, subject to it satisfying the requisite amendment procedures, from
passing laws with retroactive effect.

2. Our laws (whatever their content) both statute and case law, are “relatively
stable”. However, even in this area, there are some indications of instability, as
some may contend. This raises the issue of certainty v. justice. On the very
substance of the dissenting judgment of Lord Hoffman in the case of Neville
Lewis v. A.G. Jamaica 2000 57 WIR 275, emphasized the point of the need for the
law to be certain.
20/3/02 (Cont’d from 18/3/02)

Lord Hoffman adopted the following quotation of the U.S. Supreme Court in
Planned Parenthood of Southeastern PA v. Casey 505 U.S. 833 @ 854 (1992):- “No
judicial system could do society’s work if it eyed each issue afresh in every case that
raised it. Indeed, the very concept of the Rule of Law underlying our own Constitution
requires continuity over time that a respect for proceeding is by definition indispensable.”
In the Casey case, the US Supreme Court refused to overrule its earlier, very
controversial decision in Roe v. Wade 410 U.S. @ p. 113 (1973). Note the irony of the
US Supreme Court position in Casey, in that they refused to do society’s work in
overruling a decision, which they, and not the society, had arrived at from a process of
interpreting the US constitution by implication. In other words, it is a pity that they did
not refuse to do society’s work for it when they were faced with the choice of evolving
the rule in Roe v. Wade in the first place. Note in the Neville Lewis case that the majority
had, in holding that the exercise of the prerogative of mercy was subject to judicial
review, thereby overruled 2 of their own previous decisions in DeFrietas v. Benny (1975)
27 WIR 318 and Reckley v. Minister of Public Safety & Immigration (2) 1996 47 WIR 9.
In so doing, they could be said to have preferred justice over certainty and also to
broaden the scope of judicial review. Note that this latter aspect, i.e. broadening the
scope of judicial review also meant that there was greater access to the courts in this
regard.
Lord Hoffman in Lewis, further made the point that though he respected the
majorities right to depart from their own earlier precedent, yet he was of the view that
they had made a mistake in doing so in this case. He stated this in these terms:-
“I entirely accept that the board is not, as a matter of law, bound by its
own previous decisions. And I respect the convention of the majority that this is an
occasion to exercise the Board’s power to overrule the earlier cases, but I think it is a
mistake. The fact that the Board has the power to depart from earlier decisions does not
mean that there are no principles which should guide it in deciding whether to do so.”
Why is it that “as implied by the view that certainty or stability is related to the
Rule of Law,” the requirement of justice should not equally be related to the Rule of
Law? Is there really any virtue in an unjust law being certain?

The majority of their Lordships in the Neville Lewis case were obviously of the view that
justice in the form of judicial review should prevail over certainty, in that particular
situation.

3. Our laws also generally, reflect the criterion of being open, general and clear.
Thus in the case of Sabba Pathi v. The State 1999 1 WLR 1836, the Privy Council
stated the principle of the requirement of clarity in these terms:
“The principle of legality requires that an offense against the criminal law
must be defined with sufficient clarity to enable a person to judge whether his acts or
omissions will fall within it and render him liable to protection on the ground that
they are criminal.” It is to be noted from the decision in the Sunday Times v. UK
1979 2 EHRR 245, which was sited by the Privy Council in the Sabba Pathi case, that
the requirement that a law complies with, at least some minimal level of clarity, is of
general application and is not confined to the criminal law. In the Sunday Times case,
the court defined the term prescribed by law:-
a. First, the law must be adequately accessible; the citizen must be able to
have an indication that is adequate in the circumstances of the legal rules
applicable to a given case.
b. Secondly, a norm cannot be regarded as a law unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct: he must
be able-if need be with appropriate advice- to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given action
may entail. These consequences need not be foreseeable with absolute
certainty: experience shows this to be unattainable.”

The Sunday Times case, referred to above, refers to another formulistic element
of the Rule of Law which was not mentioned by Raz, and that is, that the law must be
accessible to the general public.

4. Raz’s stipulation that the Rule of Law requires an Independent Judiciary is

exemplified in our constitutions in specific provisions and also reinforced by our
case law such as Hinds v. R and others.

5. The requirement that citizens should have access to the courts of law is also
generally provided for in our constitutions and by virtue of the common law. The
Right of Access to the commonwealth Caribbean courts is guaranteed by the
various provisions in our constitutions which guarantee judicial review to the
various basis or sources of judicial review such as the Supreme law clauses and
other constitutional sources. The case of R v. Chancellor ex parte Wickham 1998
QB 575, also illustrates that there is a “common law constitutional right of access
to the courts which cannot be taken away by subsidiary legislation unless
expressly authorized by primary legislation.”
The impact of Ouster provisions/clauses in terms of its implications for this Rule of Law
concept must be assessed. Since the very purpose of Ouster provisions or clauses is to
seek to shut out the jurisdiction of the courts, then it is clearly a direct negation of the
Rule of law principle which guarantees the Right of Access to the courts. This latter
point is also illustrated by the following comments of Sueur et al in Principles of Public
Law, where it was held that: “The Courts are often hostile to Ouster clauses on the basis
that they present a challenge to the Rule of Law, because they displaced the courts proper
constitutional rule of scrutinizing and regulating the actions of public bodies.

21/3/02 (Cont’d from 20/3/02)

It is feared that, if the courts are precluded from adjudicating on the legality of the actions
of government departments or other public bodies, there may be no effective check on
their actions. It may also constitute a breach of the right of access to a court which is
constitutionally protected both under the European Community Human Rights (ECHR)
and Common laws.
The courts have minimized the effect of these ouster provisions by construing
them in such a way as to restrict their application only to situations where they have
found that the public body or other governmental entity has acted within the scope of its
jurisdiction. Thus, in the case of Evelyn v. Chichester 1970 15 WIR 410, it was held in
relation to constitutional ouster provision contained in Article 119 para. 6, now Article
225 (6) of the constitution of Guyana as follows: “That sur shi ari will lie to test the
question whether or not a commission appointed under the constitution of Guyana has
jurisdiction to perform any function, but once jurisdiction is properly assumed, the court
may not properly enquire into the validity of the discharge of that function. The same
principle regarding the scope of Ouster provisions was illustrated in the Privy Council
decision of Thomas v. AG of Trinidad &Tobago 1981 3 WLR 601. This time the ouster
provision was related to the Police Service Commission. Here the Privy Council
expressed the principle in these terms:- “If the Police Service Commission had done
something that lay outside its functions, such as making appointments to the Teaching
Service or purporting to create a criminal offence, s. 102 subs. 4 of the Constitution
would not oust the jurisdiction of the High court to declare that what it had purported to
do was null and void.”
The phenomenon of ouster provisions demonstrate the inherent weakness of
adopting a purely formulistic conception of the Rule of Law. The weakness is that if you
do not evolve rules which speak to the content of law, then you allow for a situation
where the content of law could be used to restrict or even eradicate the various
formulistic rules or principles of law. The formalist may be content in accepting this and
may simply say that all this means is that a particular society which does this should not
complain if it is labeled by the formalist as being a society which does not comply with
the rule of law in certain respects. The problem with this formulistic approach is that it
provides the very theoretical basis upon which the various formulistic elements of the
Rule of Law can be eroded by not insisting on rules which govern the content of law.

6. Another formulistic element relates to the exercise of discretionary power. This

element seeks to posit that discretionary power must not be unfettered and should
 not be exercised arbitrarily. These principles are reflected in our case law, indeed
the case of Neville Lewis v. AG of Jamaica represent the removal of the last
bastion of an absolute or unfettered discretion, which related to the exercise of the
prerogative of mercy. Also, in the Commonwealth Caribbean case of Re
Manpower Citizen’s Association 1964 WIR 52, the court stated in response to a
certain claim, that the Registrar had an unfettered discretion to cancel the
registration of the Trade Union in question that such a contention “has neither
principle nor authority in support of it, for to accept without question any such
proposition, would be a serious inroad on the rule of law in a democratic society.”

With respect to the issue of equality of law, which was raised by Dicey, the question is
whether this fits within a formulistic or substantive framework. It is clear that the Dicean
concept in this regard is a formulistic one, that is, it implies that the law, whatever its
content, should be applied equally to everyone and that no one is above the law. The
case of Hochoy v Nuge 1964 7 WIR 174 is a commonwealth Caribbean illustration of this
Dicean formulistic concept of the rule of law. Accordingly, it was held in Hochoy that
the Governor General was not immune from suit and that the sovereign immunity from
suit was personal to the sovereign and not transferable to her representative. It is
important to note, however, that there is a substantive aspect to the equality of law
principle. This substantive aspect is denoted, e.g. by the requirement embodied in our
constitution that the substance of our laws must not be discriminatory in certain respects.
As regards to this substantive concept of the rule of law generally, it is clear as
stated earlier in our lectures, that our constitutions in the various fundamental rights
provisions, in particular, speak to our various law makers regarding a number of
limitations on the substance of the laws made by Parliament. Those constitutional
provisions were meant to protect certain fundamental moral principles of justice. It is to
be noted, however, that even these fundamental principles are not afforded absolute
protection in our constitution since even they can be amended by compliance with the
requisite procedures for amendment.