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The desire to enlarge the scope of the rule of law is understandable but where is the line to be drawn? asks Raymond Wacks
On 14 October 2024, the Attorney General Lord Hermer KC delivered the 2024 Bingham Lecture entitled ‘The Rule of Law in an Age of Populism’. His remarks are a salutary reminder of the importance of this central concept which has long been something of a cliché, especially in the political lexicon. Its literal meaning – ‘the law rules’ – is banal, even tautologous.
As Judith Shklar put it, the term ‘has become meaningless thanks to ideological abuse and general over-use. It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians.’ Nevertheless, expressed as a symbolic aspiration, it embodies the notion of legality, and the values associated with mechanisms of control over the exercise of arbitrary authority and sweeping discretion.
Lord Hermer is right to recognise the dangers that populism poses to the rule of law. In my recent book, The Rule of Law Under Fire? (upon which I draw here), I identify no less than 16 threats to the rule of law, and populism is foremost among them. If, as I believe, the core of the rule of law is the constraint it imposes on unbridled power, populist leaders exemplify its antithesis. They exhibit an unambiguous hostility toward independent institutions, and an unashamed desire for the exclusivity of unlimited rule. In pursuit of this object, they evince scorn (often ad hominem) for judges, judicial independence, the media, the civil service, media, and NGOs. Particularly disquieting, of course, is their assault on the courts. There have been a number of recent instances of institutional conflict between the judiciary and executive.
Populists have little difficulty in simultaneously flaunting and flouting the rule of law. The legal system is chastised for corroding the rule of law, depriving the people of its benefits, while, at the same time, the law is deployed to frustrate democratic values.
The Attorney General, however, strays into contentious territory when, following the position advanced in Lord Bingham’s justly popular and influential book, The Rule of Law, Lord Hermer espouses a substantive or ‘thick’ conception of the rule of law:
‘One of Lord Bingham’s great contributions was to promote a more substantive conception of the rule of law, including the idea that the law must afford adequate protection of fundamental human rights. I too believe that human rights – both at the level of principle, and in practice through how they are enforced – are an essential element of the rule of law and a stable democratic culture.’
This, I respectfully submit, is simply wrong. To import ‘human rights’ into the notion of the rule of law is mistaken. The understandable desire to inflate the scope of the rule of law to include under its umbrella the protection of human rights attenuates both values. How? Packing the ideal with benevolent intentions saps its essential character as a constitutional instrument to contain the exercise of arbitrary power. And it correspondingly diminishes the powerful concept of human rights by merging it with procedural devices.
It seems that when we cherish a particular ideal there is an irresistible temptation to expand it almost to breaking point or to load it with freight that it can barely support. By expanding the ideal of the rule of law, the values together which it is lumped are weakened through the loss of their independent potency.
Human rights are most successfully safeguarded in their own name. Moreover, a thick, substantive theory of the rule of law may actually be legally counter-productive. It could, for example, lead courts engaged in judicial review to shrink from adopting a full-blown appraisal of a declaration of a state of emergency.
One cannot deny that formal requirements have substantive foundations and normative consequences. The right to a fair trial, for example, is both grounded in principles of justice, and presumes the existence of dispassionate courts. There is an inexorable symbiotic relationship between procedural and substantive features of the rule of law. But this is a far cry from the incorporation of the latter as advocated by Lord Hermer.
The desire to enlarge the scope of the rule of law is understandable in a newly appointed senior law officer aspiring to foster justice and equality. But this is misguided. Where is the line to be drawn? Does a democratic society not require free and fair elections? Are criminal defendants not entitled to an effective and gratis system of legal aid? In addition to their independence, should members of the judiciary not also represent a cross-section of the community? And so on.
There are ample elements of a democratic legal system whose deficiencies may enfeeble its effective operation and weaken the rule of law. But we should resist amplifying and encumbering the concept beyond its nucleus. The rule of law is severely adulterated when, in the words of Joseph Raz, it ‘propound(s) a social philosophy.’
I contest the claim that a ‘thin’ version of the rule of law is somehow shorn of its ethical or evaluative content. The proposition that, for example, the law ought to apply equally to all regardless of their social status, gender, wealth, creed, race, and so on bristles with moral force. This is not for a moment to deny the importance of appreciating the social and institutional context of the legal order whose disorders one claims the right to diagnose and cure.
Having lived in a repressive society, I understand the indifference and conceit with which arbitrary power is arrogantly exercised. If the rule of law means anything, it signifies a powerful check on the abuse of power. That is not to say, of course, that it is simply a negative ideal; its strength lies in the affirmation of the values of fairness, and integrity. Institutional constraints will rarely suffice. There is plainly a need for a domestic social, political, and cultural dedication to the rule of law as a laudable ideal. This will include judges, lawyers, and other officials imbued with a commitment to the traditions and values of the law. Lord Hermer is explicit in his desire to pursue this vital quest.
Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of 17 books and editor of ten. Oxford University Press is expected to publish the seventh edition of his Understanding Jurisprudence in 2025. The Rule of Law Under Fire? was published by Hart Publishing in 2021.
On 14 October 2024, the Attorney General Lord Hermer KC delivered the 2024 Bingham Lecture entitled ‘The Rule of Law in an Age of Populism’. His remarks are a salutary reminder of the importance of this central concept which has long been something of a cliché, especially in the political lexicon. Its literal meaning – ‘the law rules’ – is banal, even tautologous.
As Judith Shklar put it, the term ‘has become meaningless thanks to ideological abuse and general over-use. It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians.’ Nevertheless, expressed as a symbolic aspiration, it embodies the notion of legality, and the values associated with mechanisms of control over the exercise of arbitrary authority and sweeping discretion.
Lord Hermer is right to recognise the dangers that populism poses to the rule of law. In my recent book, The Rule of Law Under Fire? (upon which I draw here), I identify no less than 16 threats to the rule of law, and populism is foremost among them. If, as I believe, the core of the rule of law is the constraint it imposes on unbridled power, populist leaders exemplify its antithesis. They exhibit an unambiguous hostility toward independent institutions, and an unashamed desire for the exclusivity of unlimited rule. In pursuit of this object, they evince scorn (often ad hominem) for judges, judicial independence, the media, the civil service, media, and NGOs. Particularly disquieting, of course, is their assault on the courts. There have been a number of recent instances of institutional conflict between the judiciary and executive.
Populists have little difficulty in simultaneously flaunting and flouting the rule of law. The legal system is chastised for corroding the rule of law, depriving the people of its benefits, while, at the same time, the law is deployed to frustrate democratic values.
The Attorney General, however, strays into contentious territory when, following the position advanced in Lord Bingham’s justly popular and influential book, The Rule of Law, Lord Hermer espouses a substantive or ‘thick’ conception of the rule of law:
‘One of Lord Bingham’s great contributions was to promote a more substantive conception of the rule of law, including the idea that the law must afford adequate protection of fundamental human rights. I too believe that human rights – both at the level of principle, and in practice through how they are enforced – are an essential element of the rule of law and a stable democratic culture.’
This, I respectfully submit, is simply wrong. To import ‘human rights’ into the notion of the rule of law is mistaken. The understandable desire to inflate the scope of the rule of law to include under its umbrella the protection of human rights attenuates both values. How? Packing the ideal with benevolent intentions saps its essential character as a constitutional instrument to contain the exercise of arbitrary power. And it correspondingly diminishes the powerful concept of human rights by merging it with procedural devices.
It seems that when we cherish a particular ideal there is an irresistible temptation to expand it almost to breaking point or to load it with freight that it can barely support. By expanding the ideal of the rule of law, the values together which it is lumped are weakened through the loss of their independent potency.
Human rights are most successfully safeguarded in their own name. Moreover, a thick, substantive theory of the rule of law may actually be legally counter-productive. It could, for example, lead courts engaged in judicial review to shrink from adopting a full-blown appraisal of a declaration of a state of emergency.
One cannot deny that formal requirements have substantive foundations and normative consequences. The right to a fair trial, for example, is both grounded in principles of justice, and presumes the existence of dispassionate courts. There is an inexorable symbiotic relationship between procedural and substantive features of the rule of law. But this is a far cry from the incorporation of the latter as advocated by Lord Hermer.
The desire to enlarge the scope of the rule of law is understandable in a newly appointed senior law officer aspiring to foster justice and equality. But this is misguided. Where is the line to be drawn? Does a democratic society not require free and fair elections? Are criminal defendants not entitled to an effective and gratis system of legal aid? In addition to their independence, should members of the judiciary not also represent a cross-section of the community? And so on.
There are ample elements of a democratic legal system whose deficiencies may enfeeble its effective operation and weaken the rule of law. But we should resist amplifying and encumbering the concept beyond its nucleus. The rule of law is severely adulterated when, in the words of Joseph Raz, it ‘propound(s) a social philosophy.’
I contest the claim that a ‘thin’ version of the rule of law is somehow shorn of its ethical or evaluative content. The proposition that, for example, the law ought to apply equally to all regardless of their social status, gender, wealth, creed, race, and so on bristles with moral force. This is not for a moment to deny the importance of appreciating the social and institutional context of the legal order whose disorders one claims the right to diagnose and cure.
Having lived in a repressive society, I understand the indifference and conceit with which arbitrary power is arrogantly exercised. If the rule of law means anything, it signifies a powerful check on the abuse of power. That is not to say, of course, that it is simply a negative ideal; its strength lies in the affirmation of the values of fairness, and integrity. Institutional constraints will rarely suffice. There is plainly a need for a domestic social, political, and cultural dedication to the rule of law as a laudable ideal. This will include judges, lawyers, and other officials imbued with a commitment to the traditions and values of the law. Lord Hermer is explicit in his desire to pursue this vital quest.
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