Goldsworthy's ‘Legislative Sovereignty and the Rule of Law’

A Summary.

Article can be found on pp. 27 - 36 of the Learning Guide.

  • Will challenge the assumption that legislative sovereignty is incompatible with the rule of law
    • Common arguments regarding legislative sovereignty:
      • The rule of law, an actual legal principle, necessarily excludes/overrides any doctrine of legislative sovereignty
      • The rule of law, a political ideal or aspiration, requires any doctrine of legislative sovereignty to be repealed and legislative power subordinated to constitutional entrenched rights

Legal principle or political ideal?

  • Different views regarding the rule of law
    • May be considered to be a constitutional (but still non-legal) principle should a constitutional convention require compliance with it
    • It can also serve as a legal principle as long as it is judicially enforceable
    • Most common law jurisdictions treat the rule of law as a principle of common law
      • This principle is thought to unquestionably govern the decisions and actions of the executive and judicial branches of government
    • In Australia, the rule of law has frequently been described as a fundamental principle implied by the Constitution
      • It has also been hinted at that this fundamental principle may justifiably invalidate some unjust legislation
  • Goldsworthy focuses on the view that the rule of law is a political principle that may or may not be guaranteed by law
    • It is a ‘supranational concept’ of potentially universal significance (as opposed to the view that it is a legal principle of a particular jurisdiction)
  • If the rule of law can be summarised in a single core proposition, it is that laws should limit or control what would otherwise be arbitrary power

The content of the rule of law

  • It is generally agreed that the rule of law requires more than ‘mere legality’ in the sense of compliance with whatever the law of a particular jurisdiction happens to be
  • Proponents of ‘thin’ or ‘formal’ conceptions of the rule of law maintain that it requires compliance only with certain procedural and institutional norms
    • That laws be general, public, prospective, and enforceable by an independent judiciary
  • Proponents of ‘thick’ or ‘substantive’ conceptions maintain that it also includes requirements concerning the substantive content of the law
  • However, Goldsworthy asserts that the ‘thin’ and ‘thick’ conceptions are too broad
    • Here’s a beautiful quote: ‘while the rule of law is more than the rule of the law, it must be less than the rule of good law’.
      • The rule of law should be considered to be a political principle, a ‘supranational concept’; thus, is more than the rule of the law (legal principles of a particular jurisdiction)
      • However, it should not incorporate every political virtue (aka, the rule of good law, which is the kind of law that, as an example, respects freedom, human dignity and rights that can be considered to transcend the law) or else the rule of law would contribute nothing to the enquiry of whether legislative power should be limited by law

‘Thin’ conceptions of the rule of law

  • Joseph Raz, whose analysis exemplifies these conceptions, denies that the rule of law means the rule of good law
    • That is, it must be distinguished from other political ideals such as democracy, justice, equality, and human rights of any kind
  • The basic goal of the rule of law is to ensure that the law is capable of guiding the behavior of its subjects
  • Therefore, all laws must be prospective, adequately publicised, clear and relatively stable
  • Raz also insists that full compliance with the above requirements is neither a necessary nor a sufficient condition for the achievement of justice
    • Recognises that there are other political ideals that may outweigh the rule of law
  • As such, this ‘thin’ conception of the rule of law does not require legislative power to be limited by a bill of rights
    • Does not aim to eliminate all kinds of arbitrary governmental powers, only those whose exercise can ‘unfairly upset citizens’ expectations about their legal obligations and rights’
  • Raz suggests that judicial review of parliamentary legislation is needed to ensure conformity with the formal requirements of the rule of law, though this is ‘very limited review’
    • This presumably means that the judiciary should be able to invalidate legislation that violates the requirements that legislation be prospective, adequately publicised, clear and relatively stable, and should not confer excessive discretion on administrators
  • However, Goldsworthy avers that judicial review of legislation on these grounds would be highly impractical
    • Legislators cannot be required to ensure that every detail of every new law is brought to the attention of every citizen, that no law include any vague terms, that the law never be changed, or that no administrator ever be granted any discretionary power
  • Therefore, ‘thin’ conceptions of the rule of law do not require that legislative power be limited by a bill of rights
    • Further, there are justifiable reasons why the specific requirements they do impose should be denied

‘Thicker’ conceptions of the rule of law

  • Proponents of thicker conceptions do not always maintain that legislative power should be limited by judicially enforceable rights
  • There are sound reasons of principle for doubting that the rule of law, even when broadly conceived, requires that legislative power be subject to judicially enforceable limits
    • The rule of law should not condemn all discretionary power

Rules and discretionary power are both essential

  • The problem is to find the best combination, given the nature of the task in question and the social and political context in which it must be performed
  • Legislative power is one of the many powers of government that is necessarily discretionary
    • By definition, it is the power to make new laws and repeal old ones (and thus it would be counterintuitive for it to be completely controlled by pre-existing laws
  • Legislature’s powers may be limited by ‘special pre-existing laws’ that legislature cannot amend nor repeal
    • However, would this necessarily enhance the rule of law? Two possible problems should spring to mind …

The two problems

  • Limiting a legislature’s powers in this way may achieve ‘little more than to shift the objectionable phenomenon—legally unlimited legislative power—to a higher level.’ (After all, how can the lawmaking power of whoever imposed the aforementioned limits be itself limited?)
    • A possible solution? Natural law. However, this would be silly really. Natural law theories posits that the most fundamental legal standards are moral standards prescribed by God/built into nature. However, even if such a theory could satisfy our worries about the objectivity of moral standards, none has yet been able to provide a methodology that makes moral disagreements easier to settle.
  • It would be difficult for moral standards to fulfill the core requirement that decision-making be governed by legal norms whose identity and content can be ascertained without excessive difficulty (relatively clear, adequately publicised). Thus, decisions that are controlled only by moral standards are not subject to the rule of law.
    • An alternative solution would be to rely on ‘reason’, as opposed to ‘will’. Yet ‘reason’ lacks substantive content, which is necessary for it to perform the function required of it. And the moment we try to give it content, we run into a problem pure reason is unavailable to us silly humans. Thus, saying that the rule of law is the rule of reason rather than of will begs the question of whose reason should rule. The reason of elected legislators? The reason of judges? The reason of ducks?
    • Another alternative would be to rely on long-standing and immutable customs to limit legislative power (as opposed to deliberately made laws). However, this is far too conservative and would cripple the power of elected legislatures. The world we live in rapidly changes and legislatures cannot be prohibited from reforming or abolishing outdated customary practices, especially ones that have come to seem oppressive and unjust.
  • Shock. Horror. It seems, then, that there must be a human lawmaker at the foundation of any modern legal system.
    • This brings us back to the problem of how to subject the power of such a human lawmaker to the rule of law.

How do we (and should we?) subject the lawmaker's power to the rule of law?

  • F. A. Hayek believed that the rule of law would be properly safeguarded only if the power to enact ordinary legislation were limited. However, he also believes that the only effective way of doing so was for a superior lawmaker to enact a binding constitution, and that its power to alter that constitution could not itself be limited.
    • Therefore, ultimately the rule of law could not be ‘a rule of the law, but [only] a meta-legal doctrine of a political ideal … [that] will be effective only in so far as the legislator feels bound by it.’
    • As such, ‘Hobbes was essentially right to claim that at the foundation of any legal system there must be an unlimited and arbitrary power, which cannot itself be bound by law.’ It is merely a question of whether the power should belong to a monarch, a legislature, a court, ‘the people’ or a combination of them.
  • Ultimately, there cannot be a government of laws rather than a government of people. And for obvious reasons, a government of the people (aka their elected representatives) should be preferred to a government of judges.
  • But wait! This kind of Hobbesian thinking is now discredited.
    • Constitutions may include provisions that are unalterable as long as the prohibition on amendment is generally accepted as binding.
  • It may be ‘unwise’ to do this (that is, prohibit amending provisions) though, for two reasons:
    • How are we to know that a constitutional provision should be made legally unchangeable?
    • It is difficult to think of any limits even to ordinary legislative power that should be made absolute. After all, ordinary legislation can override human rights (eg. Laws restricting free speech).

Issues with imposing rigid limits on legislative power

  • If rigid limits are imposed on legislative power, and judges appointed to enforce them, the legislature may be disabled from doing good as well as from doing evil and the disadvantages of the former disability may outweigh the advantages of the latter.
  • Also, if decisions by judges and legislatures involve weighing up competing abstract moral principles, why should the judges, but not the legislature, be regarded as ‘ruled by law’?
  • It can be argued that judicially enforceable bills of rights might actually diminish the rule of law, rather than enhance it.
    • When bills of rights transfer the ultimate review of legislation from legislatures to judges, they make the law that is likely to be applied by the judges less predictable. The judges are authorised to reject it for what are essentially reasons of political morality.
      • Judgments of political morality are generally less predictable than judgments about the proper meaning and interpretation of legislation (which are restricted by the ordinary plain meaning and purpose)
    • In essence, a judicially enforceable bill of rights would confer on judges a power to veto legislation retrospectively, on the basis of judgments of political morality. Thus, the rule of law may be diminished rather than enhanced.
  • While legislative power is by definition difficult to be limited by pre-existing laws, judicial power is by definition ideally suited to it (since it is, in large part, precisely the power to apply pre-existing laws)

Allan's reference to the article in the lecture

Goldsworthy poses the question of whether the rule of law can exist in New Zealand given that there is no written constitution and the legislature has essentially unlimited legal power.

He answers this question in the affirmative, stating that the rule of law can exist in the first conception (i.e. the thin, procedural rule of law that focuses on the procedural 'how' questions). Furthermore, he states that even the set out procedure that laws should be passed retrospectively can be debatable, drawing on examples from World War II, namely the war crime trials of the Nazis where retrospective laws were passed in order for their execution which most people would say is a good outcome.

Ultimately, Goldsworthy concludes that a legally unlimited legislature is compatible with the rule of law.