Principles of the
Rule of Law?
The rule of law is a set of principles or yardsticks by which laws (statutory and common law- judge-made) and actions by those with some legal authority such as regulators and the courts, can be measured to see if they comply with those principles.
Dicey’s Three Fundamental Principles of the Rule of Law
The rule of law has three fundamental principles that Professor Dicey articulated in his 1885 text Introduction to the Study of the Law of the Constitution. These are:
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- The absolute supremacy or predominance of the law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness or prerogative, or even of wider discretionary authority on the part of the government. The people are ruled by the law, and by the law alone; a man may be punished for a breach of law, but he can be punished for nothing else.
- Equality for all before the law. Every person no matter their rank or condition is subject to the ordinary law. This excludes the idea of any exemption of officials or others from the duty of obedience to the law. We are all subject to the jurisdiction of the ordinary tribunals.
- An independent judiciary that determines people’s rights and obligations under the law.
‘The rule of law is an overarching principle which ensures that Australians are governed by laws which their elected representatives make and which reflect the rule of law. It requires that the laws are administered justly and fairly.’
– Robin Speed, Founder, Rule of Law Education Centre
Modern Principles of the Rule of Law
Since 1885 these principles have been developed further and the rule of law now includes the following principles in practice:
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- The law is applied equally and fairly, so that no one is above the law.
- The separation of powers between the legislature, the executive and the judiciary.
- The judicial system is independent and impartial with open justice
- The law is made by representatives of the people in an open and transparent way.
- The law is capable of being known by everyone, so that everyone can comply.
- People can only be punished in accordance with the law
- No one is subject adversely to a retrospective change of the law or prosecuted, for any offence not known to the law when committed.
- Government agencies to act as model litigants
- A fair and prompt trial.
- All people are presumed to be innocent until proven otherwise and are entitled to remain silent and are not required to incriminate themselves.
- The law and its administration is subject to open and free criticism by the people, who may assemble without fear.
In summary, in a legal system that adheres to the rule of law, the people subject to it, should know what the law is and have reasonable certainty as to the consequences of breaking that law. The same laws should apply to all persons subject to the legal system and any determination of whether the law has been broken and the consequences of any breach, or to determine a party’s rights and obligations, should be conducted by an open and independent judicial system.
The Rule of Law Simplified: The Rule of Law Wheel
To inspire discussion of the Rule of Law in practice, we use our Rule of Law Wheel which provides a way to imagine the principles and legal traditions that contribute to maintaining the rule of law in Australia.
Click on each section of the wheel below to learn more about the different principles of the rule of law:
Read more about the Rule of Law Wheel on our What is the Rule of Law page or by downloading the Rule of Law Wheel Poster.
Historical Approaches to the Rule of Law
The rule of law is a complex concept that has been debated and analysed by scholars for centuries. At its core, the rule of law is concerned with the fairness, accessibility, and efficiency of the legal system, from the creation of laws, through their enforcement, and finally to the court process.
It encompasses concerns about equality under the law, government accountability, constraints on arbitrary power, independent and impartial dispute resolution, protection of human rights, democratic involvement in law-making, and a broader culture of lawfulness.
Lord Bingham
Lord Tom Bingham was a British judge who died in 2010. He was Lord Chief Justice of England and Wales, and Master of the Rolls, and Senior Law Lord. He published a book called The Rule of Law in 2010, which sets out eight principles that Lord Bingham considered made up the rule of law:
- “The law must be accessible and, so far as possible, intelligible, clear, and predictable”;
- “Questions of legal right and liability should ordinarily be resolved by application of the law, and not the exercise of discretion”;
- “The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation”;
- “Legal protection of such human rights as, within that society, are seen as fundamental”;
- “Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”;
- “Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred, and without exceeding the limits of such powers”;
- “The adjudicative procedures provided by the state should be fair”; and
- “Compliance by the state with its obligations in international law.”
Bingham’s approach is more helpful than Dicey’s in many ways, drawing attention to the principles that countries around the world might aspire to, regardless of their history or arrangement of government institutions. There is nothing specifically English about his definition of the rule of law.
Nevertheless, Bingham’s broad definition is also controversial, particularly in its inclusion of human rights protections, and compliance with international law. Critics have argued that it reads more like a shopping list of ideal characteristics of a country or government, rather than an explanation of the rule of law. This, they say, robs the concept of ‘the rule of law’ of any meaningful content; it just becomes a list of things we think are good for a government to do.
Professor Martin Krygier
Professor Martin Krygier, a former member of the governing committee of the Rule of Law Institute, is an Australian legal theorist. He is currently the Gordon Samuels Professor Law and Social Theory at the University of New South Wales, in Sydney.
Krygier’s interpretation of the rule of law differs from many other scholars in his insistence that we should not list principles or institutions that we regard as indispensable to the rule of law, but rather first ask why we value the rule of law – what is the purpose of it – and then proceed to identify the institutions and legal mechanisms that will advance that purpose.
Krygier argues that the purpose of the rule of law is “to temper or moderate the exercise of power, in order to avoid its arbitrary use”. Therefore, institutions or mechanisms that advance this purpose in a particular society or point in time are what we mean by the rule of law.
In a lecture to the Ramsay Centre for Western Civilisation in October 2024, Krygier said “The rule of law is a device to try to deal with a particular mischief, which is very persuasive and that is arbitrary power. What it seeks to do .. is to temper the exercise of power.”