Some Axioms Proved Upon Our Pulses

It is a great honour to give this address named after the late Robin Speed. I had the immense privilege to have been briefed by Robin Speed and his firm for all of my 33 years as a barrister. His matters were invariably stimulating, as was his conversation. No one ever engaged Robin Speed because they thought their problem was straightforward. He also demonstrated by his intellectual leadership and practical example how a thoughtful and conscientious lawyer can enhance the rule of law, a concept for which he cared very deeply. He was a model of how legal practitioners can and should play a role in the broader community.

The title of this address is taken from John Keats’s celebrated aphorism that: “Axioms in philosophy are not axioms until they are proved upon our pulses.” In other words, philosophical principles are not properly appreciated until they are experienced personally. That notion might be qualified slightly by acknowledging that the study of history and literature can provide us with a kind of vicarious experience to save us from having to live through certain ideas ourselves in order to understand them. However, the wise comfort of a mere observer is never entirely the same as the sting of personal and direct experience. In terms of the rule of law, we often tend to take the rule of law for granted in our everyday lives, but departures from it readily bring home to us the fundamental importance of the rule of law in any society which respects human dignity and autonomy. Heart-beats accelerate. Blood pressure rises. Cheeks become flushed. Sometimes the veins on foreheads stand out. In short, the axioms of the rule of law are very easily proved upon our pulses.

I am going to structure the address around two questions: What is the rule of law, and why do we have it? But I am going to start with a slight digression and say what the rule of law is not. The rule of law is a narrower concept than is often advanced, and it is important, as the great Lord Mansfield said more than once, not to overstretch our favourite concepts for fear of endangering them (Weston v Downes (1778) 99 ER 19 at 20; Towers v Barrett (1786) 99 ER 1014 and 1015).

In the first place, the rule of law is not to be equated with democracy, whether conceived of as Athenian democracy in its purest form, parliamentary or representative democracy, guided democracy or some other constitutional form. The rule of law existed in the United Kingdom well before the rise of Parliament in the 18th Century, or parliamentary democracy in the 19th Century. In Australia, the rule of law existed long before the commencement of the gradual process towards responsible self-government and ultimately federation. Take, for example, the very first civil case tried in New South Wales in 1788, Cable v Sinclair, in which a convict couple with a two year-old child successfully sued the master of one of the ships of the First Fleet for failing to deliver a parcel containing their possessions. Two young, uneducated, convicted criminals were claiming damages against a person of considerable standing. Their respectful treatment by the court as worthy and deserving litigants was a vindication of the rule of law. But whatever view one takes of the  merits of the penal colony, it was certainly not democratic. Having said that, there is, of course, every reason why a democratic country would value the rule of law.

Second, I do not use the term “the rule of law” to refer to the substantive content of individual rights and duties. I therefore part company with Lord Bingham who argued in his book, The Rule of Law in 2010, that the rule of law demands protection of all the fundamental human rights (see Lord Bingham’s Chapter 7). I do not seek to diminish the importance of those rights, which are also basic to human dignity. But that topic takes us well beyond the proper scope of the rule of law, which is concerned with qualities of institutions and processes, not with the substantive content of laws.

The rule of law is best expressed in terms of a series of desiderata. Professor Lon Fuller set out such a list in his stimulating book, The Morality of Law, and illustrated them with a richness of historical and contemporary examples, and an extended allegory sourced from his own fizzing imagination. The list which I have adopted is that given by Professor John Finnis in Natural Law and Natural Rights (pp 270–71). And as I will seek to demonstrate, these desiderata involve questions of degree, and some departure from them in certain circumstances can be justified morally and politically. Nonetheless, as a general matter, the more the legal system adheres to the desiderata of the rule of law, the more it is in good shape as a legal system.

On occasions, there will be a tension between the various desiderata. For example, when judges are called upon to decide whether to depart from a previous decision of the same court (and at the same level of judicial hierarchy), there is a clash between the desirability of consistency and predictability of judicial decision-making, on the one hand, and the desirability of judges applying the law according to its tenor and not perpetuating error, on the other hand (see Abbey Laboratories Pty Ltd v Virbac (Australia) Pty Ltd (No 3) [2025] FCA 1179 at [146]). The way in which that tension is resolved depends on the nature and circumstances of the particular legal issue in question, and there cannot be any rigidly inflexible approach. Importantly, judges should candidly acknowledge that the problem is one concerning the rule of law rather than obscuring the issue with opaque phrases such as the demands of so-called “judicial comity”, which in any event give the unfortunate impression that judges are giving priority to internal relations among themselves over their duties to the public.

Turning then to the particular desiderata, the first is that rules should be prospective not retrospective. The law aims to guide human behaviour, and it can do that only by telling people in advance what the law is. Statutes are almost invariably prospective in effect, but the same is not true of judge-made law. One of the complaints frequently (and justifiably) made about judicial activism is that when judges make law, such as when they overrule a longstanding precedent or invent some new constitutional entitlement, they do so retrospectively. People have planned their affairs on the basis of the law as previously understood, not knowing of the impending change. The High Court of Australia has clearly stated that it has no power to overrule cases prospectively because a hallmark of the judicial process is determining legal rights and obligations in relation to past events or conduct (Ha v New South Wales (1997) 189 CLR 465 at 503 (Brennan CJ, McHugh, Gummow and Kirby JJ), 515 (Dawson, Toohey and Gaudron JJ)). The fact that such changes are made by unelected and unremovable judges only increases public anger and gets their pulse racing.

The need for laws not to be retrospective is particularly acute in the context of taxation law, where people structure their affairs according to laws which they are allowed, or even encouraged, to pick up and use. Often complaints are wrongly expressed in terms of retrospectivity, when the real complaint is the different one that the law is not sufficiently stable to allow for proper planning. For example, the taxation of superannuation funds in Australia has been the subject of very many amendments in recent years, typically framed strictly in prospective terms, but which are criticised for the frequency of amendments in an area where people are trying to make plans for the rest of their lives. That is certainly a problem, but it is a problem of laws not being sufficiently stable, rather than of laws being retrospective.

Taxation laws affect the planning of people’s affairs more directly than many other branches of the law. They often have the express objective not merely of raising revenue but of guiding conduct in ways thought desirable by the government. However, on rare occasions, even in the field of taxation, departures from the prospectivity of laws may well be justified, or at least provide instances where reasonable minds can legitimately differ. In Australia, a powerful example is provided by the so-called bottom-of-the-harbour legislation in 1982. The bottom-of-the-harbour schemes involved stripping a company of its assets after a tax liability had accrued but before payment was due so that it was unable to meet its liability. In some cases, the company’s records were thrown into Sydney Harbour, hence the name. The government had criminalised bottom-of-the-harbour schemes in 1980, but a very large amount of tax had been evaded before the criminal law had been invoked. In 1982, the government decided to recover it through retrospective legislation targeting the sellers of shares in companies involved in the evasion since 1972. This amounted to imposing a tax on certain individuals because of an activity that was tax-free for them when they engaged in it. The decision involved great political courage by the then Treasurer, Mr John Howard. There was uproar among members of the Liberal Party and in the business community. Fourteen members of the Liberal and National parties crossed the floor to vote against the legislation. Exaggerated comparisons were made to Nazi Germany by people who had forgotten the debaters’ maxim that the easiest way to lose an argument is to mention Hitler. However, there was also widespread support for Howard’s position in light of the grossly immoral nature of the schemes and the unfair burden which such tax evasion imposed on honest taxpayers. In the end, Howard won both the political and the philosophical battle. He also won the legal battle in the High Court as to the constitutional validity of the legislation (MacCormick v Commissioner of Taxation (1984) 158 CLR 622). Retrospective tax legislation is certainly contrary to the rule of law, but the virtue of the rule of law in rare circumstances may be outweighed by other fundamentally important and competing virtues. That is an aspect of statesmanship.

The second desideratum is that the rules are not in any other way impossible to comply with. This is an obvious proposition that is fundamental to any purposeful law which seeks to guide human behaviour.

The third desideratum is that the rules are promulgated. Plainly, the rules of the legal system must be available to the public if the conduct of people is to be guided by those rules. However, as Professor Finnis explains, promulgation is not fully achieved by printing ever so many legible official copies of statutes and precedents. It also requires the existence of a professional class of lawyers whose business it is to know their way around the books, and who are available without undue difficulty and expense to advise anybody who wants to know where they stand (Natural Law and Natural Rights, p 271).

That raises an important issue which has arisen in the context of civil penalty provisions under company law, and competition and consumer law. A party often seeks to be relieved from liability for the contravention, or not to have a civil penalty imposed for a contravention, because the party acted in accordance with legal advice on the issue, even though that legal advice might have turned out to be wrong. There have been cases in which appellate courts have surprisingly said that acting in reliance on favourable and unqualified legal advice is a matter only of minimal weight in the assessment of a penalty. I have serious misgivings about that view. Before engaging in conduct in an area where the law is complex or otherwise uncertain, a person who is acting responsibly will consult a lawyer whose competence and integrity are not in question, and act in reliance on that advice. What more can reasonably be expected of people? As a general matter, a person who acts in that way is entitled to be accorded the dignity of responsible self-direction and autonomy which the rule of law is designed to secure. Accordingly, in my view, it may well be that a person acting in reliance on legal advice should be relieved from liability (ASIC v Web3 Ventures Pty Ltd (2024) FCA 578, especially at [38]–[39]), and similar reasoning applies in cases concerning whether, or in what amount, a civil penalty should be imposed (see ASIC v HCF Life Insurance Company Pty Ltd (Penalty) [2025] FCA 454 and ASIC v BSF Solutions Pty Ltd (Penalty) [2026] FCA 450).

The fourth desideratum is that the rules are clear. This is, of course, a matter of degree on which perfection is unattainable given the imperfections and ambiguities of language and the human inability to foresee all possibilities. While some vagueness is inescapable, in Australia there has been a tendency in recent years to express statutes (particularly those concerning consumer law and regulation) in terms of broad and loose concepts, such as unconscionability and unfairness. On the one hand, those who support such drafting often argue that the vagueness of the concepts will improve commercial behaviour by ensuring that businesses steer clear of the shadowlands at the outer reach of the relevant concepts. A better justification is that broad moral standards incorporate into the law the standards of common sense judgment shared by ordinary people, albeit at the price of uncertainty in application. On the other hand, those who face the challenges of actually managing businesses in a competitive environment justifiably contend that crisper language enables them to be more confident as to where the line is drawn between lawful and unlawful conduct, and to design their business models accordingly. Competition in business is tough, and competitors will often want to place themselves close to the edge of lawful conduct to gain a legitimate advantage. Friedrich Hayek, who admired the common law’s ability to reflect the common sense of ordinary people, also regarded the progressive introduction of vague and uncertain formulas as to what is “fair” or “reasonable” as evidence of the decline of the rule of law (The Road to Serfdom, 1944, Chapter 6, p 78; p 116 in Vol II of The Collected Works of F.A. Hayek, ed. by Bruce Caldwell, The University of Chicago Press, 2007). The problem tends to be mitigated by the development of a mature body of case-law which informs the content of otherwise vague standards, although I accept that that takes time. For example, the standard adopted in company law concerning whether the conduct of a company’s affairs is “oppressive to,  unfairly prejudicial to, or unfairly discriminatory against” a shareholder or shareholders tends to be applied in accordance with a number of well-established kinds of case, despite the fact that the categories are not closed. To the extent that the nature of the subject-matter permits crisp rather than soggy drafting, then that is generally desirable. However, legislators and judges can never be more precise than the nature of the subject-matter allows.

The fifth desideratum is that the rules are coherent one with another. The existence of intersecting or conflicting rules is a routine feature of a legal system, which must develop rules to resolve those inconsistencies. These rules are often the subject of serious contest in particular cases, but they are essential. And as I will seek to demonstrate, this is not the only aspect of the rule of law where judges have a particular responsibility.

The sixth desideratum is that the rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules. As mentioned already, this is often what people mean when they accuse legislators of enacting retrospective laws which strictly speaking only have a prospective effect. In Australia it has been a particularly acute problem with the taxation of superannuation. Governments which expect people to make long-term plans to provide for their retirement or their dependents, sacrificing present enjoyment for future well-being, need to be mindful that people are putting their trust in the government not to change the rules so often as to undermine the very planning which is sought to be encouraged.

The seventh desideratum is that the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable and relatively general. That said, there are many issues which are best left to discretionary decision-making, whether by judges or executive officials, who must choose what they regard as the optimal outcome from a range of reasonable decisions. The important feature of the rule of law is that the exercise of such discretions be constrained by legal principles. In general, some controlled judicial and administrative discretion is better than none. The development of administrative law in the latter half of the 20th Century was thus an important enhancement of the rule of law, especially as the executive branch of government increased in size and importance. And it is illuminating to view the principles concerning judicial review of administrative action as having been built on an analogy (albeit an imperfect one) with principles concerning judicial review of trustees’ decision-making (Equitable Life Assurance Society v Hyman [2002] 1 AC 408 at [17]–[20] (Lord Woolf MR); Pitt v Holt [2013] 2 AC 108 at [11] (Lord Walker); and see the other references in Special Gold Pty Ltd (in liq) v Dyldam Developments Pty Ltd (No 2) [2025] FCA 825 at [82]–[86]). Trustees, like those entrusted with public power, hold their powers for the benefit of others. That is essentially how the relationship between the government and the governed should operate under the rule of law.

The eighth and final desideratum is that those people who have authority to make, administer and apply the rules in an official capacity (a) are accountable for their compliance with rules applicable to their performance, and (b) do actually administer the law consistently and in accordance with its tenor. This desideratum reminds us that the nature of a legal system as a system requires that the law regulates its own creation and application. There is little, if any, point in making laws unless there are judges and other officials who are willing and able to apply and enforce them according to legal standards.

Take, for example, the historical petri dish of the Victorian police strike in 1923. Since the 19th Century, it has been axiomatic that the rule of law requires the existence of a public police force with responsibility for the enforcement of the criminal law. When the Victorian police went out on strike, there followed several days of violent rioting and looting. The fronts of 78 shops were smashed in, generally with beer bottles, and three people were killed. One of the most alarming features of that conduct was that almost all of the convicted perpetrators were first-time offenders, who were ordinarily law-abiding citizens, rather than members of criminal gangs (Gavin Brown and Robert Haldane, Days of Violence, Hybrid Publishers, 1998, p 105). The 1923 police strike brings home that the rule of law is for a civilised society what air is to breathing. Its existence is generally assumed, but its absence can be immensely destructive. The problem did not even seem to occur to those in the United States a few years ago who called for the de-funding of the police as an element of the Black Lives Matter movement. A problem of the police in parts of the United States abusing their powers was never going to be solved by doing away with having a police force.

The exercise of judicial authority by persons professionally equipped and motivated to act according to law is a fundamental aspect of this eighth desideratum, and gives rise to further desiderata, such as the independence of the judiciary, the openness of court proceedings, and the accessibility of the courts (John Finnis, Natural Law and Natural Rights, p 271). Access to the courts is not just a matter of being able to put one’s case to a judge. It is obviously also a question of the effective and timely administration of the law by way of obtaining a decision. The egregious delays by some judges in delivering reserved judgments represent a real and growing threat to the rule of law in Australia. Delays of nine months or more are relatively common in some courts including my own, and a significant number of judgments of the Federal Court are reserved for about 2½ years or more. For example:

(i) Justice Lindsay Foster decided Masters v Lombe (in his capacity as Liquidator of Babcock & Brown Ltd (in liq) [2019] FCA 1720 a little over three years after the completion of a trial which lasted only four days, although illness may have been an extenuating circumstance;

(ii) Justice John Nicholas decided Toolgen Inc v Fisher (No 2) [2023] FCA 794; (2023) 184 IPR 191 two years and 9½ months after an 8-day trial;

(iii) Justice Katrina Banks-Smith decided Ezy-Fit Engineering Group Pty Ltd v Microm Nominees [2024] FCA 441 a little over 2 years and 4 months after a 10-day hearing;

(iv) Justice Bernard Murphy decided Southernwood v Brambles Ltd (No 3) [2026] FCA 418 some 3½ years after the hearing;

(v) Justice Bernard Murphy also heard the case of Gall v Domino’s Pizza Enterprises Ltd, the last day of the hearing having been in November 2022, 3½ years ago, yet judgment still stands reserved;

(vi) Justice Scott Goodman decided the case of ASIC v Nuix Ltd [2026] FCA 490 two years and five months after a 16-day trial, although his Honour did have the good grace to apologise for the delay (at [10]); and

(vii) Justice Kathy Farrell did not write a judgment at all in Smart Education Program Pty Ltd (in liq) v CLGC Australia Pty Ltd [2023] FCA 826 after reserving judgment for 2½ years, and simply walked away into the contented sunset of retirement on a full judicial pension and left it for someone else to be allocated the task of doing the work. Even if that other judge had not been me, I would still be just as ashamed for the institution of the Federal Court.

In the Federal Court’s Annual Report for 2024–25, you will find reference to 83% of the 1,704 judgments that year having been delivered within three months of being reserved, and 91% delivered within six months (p 8). The reader is told that: “The statistics indicate the Court continues to perform at a high standard” (p 29). But the statistics mean that the litigants in 153 cases decided that year were waiting for judgment for over six months, and the reader is given no information about delays of one, two or three years, or longer. I therefore dissociate myself from the Court’s self-congratulation.

These delays represent a most regrettable state of affairs, which many judges prefer to ignore. A court case is usually a very important event in the lives of litigants. Apart from the cost in terms of time, money and energy, and the strain that litigation places on the parties, career and business progression are often put on hold and opportunities may be foregone. Sometimes assets are frozen or other interlocutory injunctions are in place pending the final decision. Judicial delay in giving judgments constitutes a serious violation of the rule of law’s requirement for the effective and timely administration of justice by those whom the community trusts to be the rule of law’s most committed guardians. Sadly, the greatest single source of unreasonable delay in legal proceedings is typically not delay by lawyers or their clients, but by judges themselves.

Who will protect the rule of law from its protectors? I do not criticise the profession for not being more outspoken publicly about the problem. Practitioners whose job it is to persuade judges as tactfully as possible are in an impossible position. The press do a good job of exposing the problem, but their well-justified criticism is typically (and unfairly) dismissed as based on an inadequate understanding of the judicial task. In the absence of a federal Judicial Commission, that really only leaves judges themselves to expose the problem and encourage public scrutiny. Public scrutiny is one of the best antidotes to complacency, and complacency almost always leads to failure. As Jeremy Bentham said in 1790:

Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

(quoted by Lord Shaw in Scott v Scott [1913] AC 417 at 477 from Draught of a New Plan for the organisation of the Judicial Establishment in France.)

In my view, public criticism should come from within the judiciary itself. As is often said in other contexts, the standards one walks past are the standards one accepts. I may well be in a small minority of current judges on this issue, but I do not see that as relevant. Sir Robert Menzies said in one of his “Forgotten People” broadcasts in 1942:

It is perhaps not untrue to say that if, in the history of the last hundred years, everybody had been compelled to subscribe to what the majority thought, there would have been no progress in the world and we should have become merely a community of dumb and driven cattle.

(“Compulsory Unionism” in The Forgotten People, Angus & Robertson, Sydney, 1943, p 130). Sir Robert Menzies could not fairly be described as anti-establishment. I also take some comfort from the fact that the Full Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 at [75] said that a delay in giving judgment of almost 17 months was “grossly inordinate”. Those judges do not appear to have contemplated that two decades later, judgments might be delayed for twice that long. Anyone who disagrees should have the courage to test their way of thinking publicly upon the pulses of ordinary and reasonable members of the community.

Let me turn now to the second of the questions which I posed at the outset, namely why do we have the rule of law? Like many philosophical problems, asking the “why” question takes us to a deeper level of understanding than the “what” question. I will start with a minimalist answer, and build from there. At its most simple, the function or purpose of the rule of law is to ensure predictability in the legal system. The law aims to guide people’s conduct through rules. The law can only do that if it represents a patterned intervention in people’s  lives, and the rule of law is designed to set the parameters of that pattern.

Pausing there, the rule of law is at the very least essential for the law’s efficiency and its fitness for purpose. Joseph Raz compared the rule of law to the sharpness of knives: like a sharp knife, the law can be used for evil purposes as well as for good. Therefore, argued Raz, the rule of law is morally neutral, as it is neutral as to the end to which it is put. For Raz, the rule of law is a moral virtue only when applied for moral purposes (“The Rule of Law and its Virtue” (1977) 93 LQR 195 especially at 205–8).

But if one steps outside the cloistered world of philosophy seminars, that view does not come close to explaining the indignation people feel when they are confronted with violations of the rule of law. Theirs is a moral indignation, typically expressed with high-toned fury. It is not merely a concern that the efficiency of the law is being compromised. Does that psychological reaction have a sound philosophical basis?

John Finnis, building on the work of Lon Fuller, gives a compelling affirmative answer to that question (Natural Law and Natural Rights, pp 272–73). He argues that the fundamental value of the predictability of law is to secure for people the dignity of self-direction and autonomy by allowing and assisting them to create a subsisting identity (as “selves”) across a lifetime. The rule of law operates to hold rulers and other officials to their side of a relationship of reciprocity in which the officials are bound to apply the rules which they have previously announced to their subjects. As Lon Fuller put the point, government says to the citizen in effect, “These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct” (The Morality of Law, Revised edition, 1969, Yale University Press, pp 39–40). Fuller distinguished that quality of reciprocity from a one-way projection of authority by government imposing itself upon the citizen, as in a managerial direction (Ibid., pp 204 – 219). Put differently, from the perspective of the governed, people respect the claims of authority on the condition that authority shows them respect as autonomous individuals. That entails a commitment to the view of people as responsible agents, capable of understanding and following rules, and answerable for their defaults. People react angrily to departures from the rule of law because of the affront to their human dignity as responsible agents. Those departures often tend to show an indifference to people’s powers of self-determination which makes our blood boil.

Finnis accepts that the rule of law does not guarantee the existence of good laws. A tyranny devoted to evil ends can pursue those ends through a fully lawful rule of law, although its efficiency for evil would be blunted by the rule of law’s capacity to restrict its freedom of manoeuvre. But, contrary to Raz, that does not prove that the rule of law is morally neutral and is valued only for its efficiency. As Finnis argues, a tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, given that the rational point of such self-discipline is the very value of reciprocity, fairness and respect for persons which the tyrant holds in contempt (Natural Law and Natural Rights, p 273). And, as Finnis notes, claims made by tyrannous regimes to an adherence to the rule of law might only be for the sake of outward appearance and propaganda. The rule of law is based on the notion that a certain quality of interaction between rulers and ruled, involving reciprocity and procedural fairness, is valuable for its own sake, and not merely as a means to other social ends (Ibid., p 274).

In my view, that reasoning corresponds to the natural expectations of ordinary people. Although H.L.A. Hart did not accept that the rule of law is a moral virtue, Finnis’s reasoning fits neatly with Hart’s rejection of law as a set of commands backed up by sanctions, and its replacement with law as rules, those rules having a range of different viewpoints. In a healthy legal system, the viewpoint whereby rules are accepted as guides to behaviour and used as a standard of criticism of one’s own and others’ conduct, rather than merely as a sign of possible punishment, will be shared by a substantial proportion of the community beyond the officials themselves. That is again illustrated by the Victorian police strike in 1923, in which the rioting and looting was brought under control by some 5,000 volunteer special constables recruited by General John Monash and Brigadier Pompey Elliott, mostly from the ranks of those who had served in the First World War. They were men who knew their business, and gave immediate attention to those who were abusing hard-won freedoms, for which the First AIF had fought. Two days later, I am happy to relate, the favourite won the Melbourne Cup before an orderly crowd of 125,000 people. That allegiance to the legal system is itself a moral virtue, because it is only through the legal system that we can realistically solve society’s coordination problems in the pursuit of the common good, in which people can flourish as individuals. That in turn depends on the rule of law, which is no less a moral virtue.

An analysis of any serious human problem would not be complete without considering what Shakespeare had to say about it. Shakespeare’s dark comedy on the rule of law, Measure for Measure, and its loathsome hypocrite, Angelo, bring home powerfully the moral virtue of the rule of law.

The ironically named Angelo is known to be a stern and austere judge, one who “scarce confesses / That his blood flows, or that his appetite / Is more to bread than stone” (Act I, scene iii, lines 51–53). In case the coarser sections of the audience missed the point, we are told a little later that “when he makes water, his urine is congealed ice” (Act III, scene ii, lines 102–3). He condemns Claudio to death under a long-ignored law against pre-marital sex, even though the girl in question was Claudio’s betrothed. It should be recalled that Shakespeare himself married Anne Hathaway when she was about four months pregnant. Claudio’s virtuous sister, Isabella, pleads with Angelo to be merciful. Struck by Isabella’s beauty, Angelo offers to spare Claudio’s life in exchange for Isabella’s virginity. When Isabella threatens to tell the public, Angelo advises her that no one will believe her in light of his “unsoiled” reputation. By a neat switch which Angelo fails to notice, Isabella is replaced by Angelo’s ex-fiancée at the agreed night-time tryst. Whatever the contemporary audience thought of the morality of the bed-trick, no sooner does Angelo mistakenly think that he has achieved the benefit of his bargain with Isabella, than he reneges on the deal, and orders that Claudio be executed anyway. Angelo’s intention in that regard is thankfully defeated in fact.

The word “authority” occurs more often in this play than in any other of Shakespeare’s plays. It is also Shakespeare’s most searching study of the intoxicating effect of power on character. For present purposes, it poses the crucial question: how is society to be governed so that people can live peacefully according to law? A government of laws not of men is, of course, literally impossible. Laws do not administer and enforce themselves. They require human agents and institutions, and they are, of course, inherently fallible. I do not subscribe to the more pessimistic and disillusioned readings that interpret the play as questioning whether judging is humanly possible at all. But I do think that Shakespeare intended to demonstrate that the just administration of the law is impossible if judges and others who create, administer and enforce the law do not believe in what we now refer to as the rule of law, and live up to that belief in their actual conduct. The law must regulate its own creation and enforcement in an integrated way by subjecting the world of officialdom to its processes and demands. No one likes a judge or legislator who behaves as if he or she is above the law. At the institutional level, trust and confidence in our institutions of government should not simply be demanded; it should be earned. And why do those themes make for great drama? Because violations of the rule of law resonate with us at a visceral level when we witness the affront to human dignity which they represent.

The play takes its title from the passage in the Sermon on the Mount which teaches that “with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again” (Matthew 7:2). That is a bracing message for those of us who make a career out of judging. The rule of law institutionalises some of the moral foundations of the Judeo-Christian tradition: the equal dignity of persons, the moral significance of the individual, and the accountability of the powerful. The measure of the law reflects its dual character, as both the standard by which the conduct of people is measured, and the standard to which those who make and administer the law are held. There is a basic reciprocity in a healthy legal system between the rulers and the ruled. As Robin Speed passionately believed, that reciprocity is a fundamentally good thing, and it lies at the heart of the rule of law.