LAWS1115 Lecture 3

Week 4: Rule of Law, Constitutionalism, Federation and Separation of Powers

Readings for Next Week

  • Richard Posner, 'Introduction' to Frontiers of Legal Theory (Harvard UP, 2001). (p. 46 of the Learning Guide)
  • Mark Tushnet, 'Judicial Review of Legislation' in Peter Cane and Mark Tushner (eds) Oxford Handbook of Legal Studies (OUP, 2003). (p. 37 of the Learning Guide)
  • Sections 12.35 to 12.45 of Clark, 'The Pros and Cons of a Bill of Rights' (p. 348 - 351).

Rule of Law

  • An aspiration, judicially enforceable in some places, a political principle, principle of the common law
  • Two main conceptions of the rule of law (the term ‘rule of law’ has two different meanings)
    • ‘Thin’ or Procedural conception: how do you make good law?
      • What is the standard of the law we produce
      • Problem: possible to make a morally suspect law even though it meets the requirements
    • ‘Thick’ or Substantive conception: asks those questions as well as a substantive component (what type of law have we come up with?)
      • Morally latent
      • Problem: by building a moral component in, you’d be saying that your view on morality is right while other views are wrong
      • There’s a difference between disagreements about facts and disagreements about values
  • Goldsworthy article
    • Deals with whether legislative sovereignty is incompatible with the rule of law
    • Retrospective legislation is ideally rare but can be defensible on occasion – ie. incident of compensation for injuries that arise dude to exploding oil drums during WWII


  • Sometimes you’re willing to sacrifice the flexibility New Zealand’s system gives you to ‘lock things in, for stability (Larry Alexander)
  • When you lock things in, it’s not easy to change
    • In the US Constitution has specified that a President must be at least 35 years-old and must be American-born.
  • Since we lock things in, it affects how we interpret law
  • When creating a constitution, you are essentially betting on security in place of changeability.
  • There are two main schools of thought on how to interpret the constitution:
    • 1. Should be interpreted as their intended meaning
    • 1.1 Should be interpreted as their intended meaning based upon the known meaning of the words at the time (rarely do 1 and 1.1 lead to different outcomes)
    • 2. Words don't change but their meaning do. Therefore, the constitution can bee interpreted with changing values. The constitution is referred to in this school of thought as a 'living constitution'.
  • Criticism: It is left up to the judges (whose moral antenna are no more finely tuned than anyone else's!) to determine social values.
  • Separation of Powers: judicial powers and non-judicial powers
    • Certain limitations on parliamentary powers
  • ‘living constitution, living constitution, evolutionary’ interpretation – the idea that the words don’t change but the meaning of the words do change over time
    • Makes sure that it keeps up with norms
  • NB: I’m sorry but everything he’s saying at the moment is what he said in the tutorial … if you feel this isn’t really in depth, you might want to check the Jim Allan tutorial notes as well… which can be found here.
  • If it doesn’t lock things in, then what’s the point?
  • Social contract (will not come up in the exam)
    • People give up sovereignty to a government or other authority in order to receive or maintain social order through the rule of law


  • Arguments for Federation:
    • It has a greater chance of satisfyingly more people on social issues
    • Creates better outcomes as it can respond to the needs of a smaller population compared to a unitary system
    • Increased competition between the states may lead to greater efficiency
    • It works …
  • Arguments against Federation:
    • Confusion over exact boundaries of concurrent and conclusive powers
    • Increased bureaucracy within the country
    • The exact terms of the agreement (i.e the constitution) are subject to interpretation via an unelected judiciary when ambiguity arises

Separation of Powers

  • Wasn't listening The Monday lecture didn't even reach this section so we'll definitely have a recap next week.
  • Common law = judge-made law