What is the
Rule of Law?
At its most basic level, the rule of law is the concept that both the government and citizens know the law and obey it.
The Rule of Law is vital for protecting citizens from unpredictable and arbitrary interference with their fundamental rights and freedoms. It ensures that everyone is subject to the law, including those in government, to provide a stable and fair framework within which society operates.
The Rule of Law is not just a concept; it is the cornerstone of a society that values equality and fairness for all individuals. With an independent judiciary, checks and balances, and a culture of lawfulness, the Rule of Law ensures basic rights of citizens are safeguarded.
The Rule of Law Defined
A simple definition of the rule of law that has near universal acceptance states
“…most of the content of the rule of law can be summed up in two points:
(1) that the people (including, one should add, the government) should be ruled by the law and obey it and(2) that the law should be such that people will be able (and, one should add, willing) to be guided by it.”
The Rule of Law Simplified: The Rule of Law Wheel
Principle 1: The Core
People are ruled by just laws, and no one is above the law.
The government can only exercise its power within the boundaries set by the law. People have the freedom to do anything, as long as their actions do not break the law.
Principle 2: The Middle Ring
The law is applied equally and fairly.
For laws to be effective, they must be clear, certain, and predictable. This enables people to understand and follow them willingly. All people must follow the law and any dispute about the law must be resolved by the independent judiciary, who is free from political pressure and personal biases.
Principle 3: The Wheel Spokes
Checks and balances, such as legal principles, procedures and governing institutions, ensure the law is applied equally and fairly, so that no one is above the law.
These structures provide mechanisms to ensure Australians are governed by laws that their elected representatives make, and which reflect the rule of law. They also ensure that the law is administered justly and fairly.
Principle 4: The Support
Supported by a culture of lawfulness.
People, including those in power, follow the law because they believe it is fair, just and of benefit to the common good. Informed citizens play a crucial role by participating in decision making and holding leaders accountable.
Further details of these elements are found by clicking each section of the wheel or going to our Principles of the Rule of Law Page.
Underlying Elements of the Rule of Law
The underlying elements of the rule of law:
- fairness – law applies to all regardless of status
- rationality – not arbitrary and make sense – that the law can be followed and is not so complex that it cannot be understood.
- predictability – that punishments for breaking the law are clear and predictable
- consistency – similar circumstances are dealt with the same way
- impartiality – independent body makes decisions on law
The Importance of the Rule of Law for Society
The rule of law is essential in maintaining a free, democratic and fair society.
At its core, the Rule of Law serves as both a warning and an aspiration.
As a warning, it ensures that those in power are held accountable and their use of power is limited. It guards against arbitrary rule and the excessive concentration of power in one person or group through the separation of powers and checks and balances, leading to authoritarianism or anarchy. In such situations, crucial checks and balances on those in power are often absent, fostering corruption and violence, and resulting in unstable and unpredictable societies. Upholding the Rule of Law is essential for maintaining a just and orderly society where everyone can thrive.
As an aspiration, the Rule of Law represents an ideal that society must continually strive towards to protect the rights and freedoms of all individuals. It is not just about the government and citizens knowing and obeying the law; it requires individuals, institutions, and processes to work together to value and protect human rights.
Without the Rule of Law, two outcomes are possible: tyranny, where a ruler disregards human rights and operates outside the law, or anarchy, where chaos and the absence of law prevail. The Rule of Law exists to prevent both of these scenarios, ensuring a just and orderly society.
The Origins of the Rule of Law
The legacy of the Rule of Law comes from the Magna Carta when the English Barons protested against the arbitrary rule of King John in 1215. To curb the King’s power, the King was required to agree to a list of demands. The Magna Carta established the idea that all citizens, including the Kings, should be fairly and equally ruled by the law.
The Magna Carta ensured the King was no longer above the law, people were ruled by the law and the law alone, there was a qualified Independent Judiciary, confidence in Fair Process, and the law was known by all.
The legacy of the Magna Carta is seen not only in English law, but throughout the world. The true power of the Magna Carta lies in its impact on later documents, and the creation of a culture of the rule of law and a respect for individual’s rights by those in power
What is the Rule of Law in Australia?
Judge Culver of the District Court of NSW outlines the essential features of the rule of law and then illustrates what a society looks like without the rule of law in action.
Her Honour outlines a fictional case of an overseas tourist being given a package by a stranger. She looks at differing treatment by the police and courts depending on whether the country has the rule of law and how that impacts the accused’s access to justice.
Rule of Law Video
This video introduces the concept of the rule of law and provides some examples of ways in which the concept supports fairness and certainty in the legal system.
Lecture Series with Kevin Lindgren AM QC
The Hon Kevin Lindgren, former Justice of the Federal Court of Australia, was appointed Adjunct Professor of the rule of law at the University of Sydney in 2012. He has lectured extensively on the concept of the rule of law and has produced a paper entitled ‘The Rule of Law: Its State of Health in Australia‘.
Professor Lindgren’s other lectures include: