Friday, 23 March 2012

The Rule of Law? What's That?

The preamble to Canada’s Constitution Act, 1982 reads:
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law…The constitution then goes on to describe the limitations on our governments and the rights Canadians.
Both the “supremacy of God” and the “rule of law” have a rich storied past. Arguably, these two concepts together underpin the Western legal traditions of natural law and natural rights. But if you search for these terms using CanLII, you will find that the “rule of law” is cited with far greater frequency than the “supremacy of God”. So what is the rule of law?

In Common Sense, Thomas Paine quipped that “in America, the law is King”. This is a pithy and succinct explanation. Following Paine, the rule of law means that no individual is King, the law itself is the King.

British Law Lord, Tom Bingham, wrote in his 2010 book that rule of law means,

…all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered by the courts.In practical terms, what does Bingham’s explanation mean?

  • Governments are not above the law.
  • Governments do not have arbitrary discretionary powers.
  • Governments must respect the rights of individuals.
  • Individuals must have access to clearly written and unambiguous laws.
  • Individuals must be treated as equals by the law.
  • Individuals must be given fair opportunity to protect their rights.

This appeared in the Canadian Constitution Foundation's blog in July 2011.

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