Into line where rules are enforced in accordance with a predictable

procedure. If government merely took the form of the whim of a

tyrant, people would be more likely to risk disobedience and the tyrant

would lack the means to ensure that his wishes were given effect.

Furthermore, the protection of law can most effectively be taken

advantage of by the wealthy and privileged classes, that is, those who

benefit from the governing regime (Horwitz, 1977). On the other hand,

as Thompson points out (1975, p. 264) ‘it was inherent in the nature of

the medium which they had selected for their own self-defence that it

could not be reserved for the exclusive use only of their own class.

In order to retain credibility a tyrant must conform to his own rules.

The law in its forms and traditions, entailed principles of equity and

universality which perforce had to be extended to all sorts and degrees

of men.’ The core idea of rule of law is therefore morally ambiguous.

5.3 The Extended Rule of Law

Some writers, notably Fuller (1969) and Allan (2001), have promoted

the notion of the rule of law in an expanded sense as supporting the

substantive values of a liberal democracy. This means a commitment

to government by consent which respects equality and human dignity

and which through obedience to the law honours its obligations to the

people. This meaning of the rule of law reflects the social contract of

96 General Principles of Constitutional and Administrative Law

Locke. For example, according to Allan (2001, p. 62), ‘(t)he principle

that laws will be faithfully applied, according to the tenor in which

they would reasonably be understood by those affected, is the most

basic tenet of the rule of law: it constitutes that minimal sense of

reciprocity between citizen and state that inheres in any form of decent

government, where law is a genuine barrier to arbitrary power.’

In this extended sense the rule of law has three main aspects. Firstly

it means that no one is above the law in the sense that officials must

justify any interference with individual liberty by reference to a power

given to them by the law; secondly, there is arguably a right to disobey

a law that violates the basic values of liberal democracy. Thirdly there

are certain values of fairness and justice particularly associated with

law. For example Fuller (1969) includes stability, openness, clarity,

coherence and fair procedures such as a right to be heard before an

unbiased judge that he calls the ‘inner morality of law.’ This is similar

to Raz’s list (above) although the latter justifies the list on efficiency

rather than moral grounds. A similar approach was endorsed by Lord

Hoffmann in Alconbury Developments v. Secretary of State [2001] 2 All

ER 929, 981) when he emphasised that in a democratic society the rule

of law means that the legality of government action must be subject to

review by independent and impartial tribunals.

Allan (2001) goes further by adding substantive values such as

freedom of expression, a right to information and non-discrimination.

He also emphasises the importance of the adversarial method of

deciding disputes which treats the parties as equals, each having a right

to present their case to an impartial judge. According to this version of

the rule of law, the state has no power to override these basic rights

except for justifiable reasons of the public welfare (see also Lord Hoff-

mann in Alconbury (above) at 980). The rule of law can therefore be

regarded as a set of moral and political values intrinsic to the legal

process that supports a democratic society.

It is often suggested that the rule of law in this sense is so vague as to

be no more than flag-waving rhetoric amounting merely to asserting

what the protagonist would do if he or she ruled the country. The

expanded rule of law is indeed a political preference and whether any

particular preference is part of our constitution is purely a question of

historical fact. In other constitutions the rule of law may be based on

different premises. For example the constitution of Iran is based upon

the rule of a supreme jurist as interpreter of divine law. It is plausible

as a matter of historical fact that liberal individualism has a powerful

influence on the political arrangements of the UK and there is no

reason to think that any alternative is more influential.

97

Constitutionalism: The Rule of Law and the Separation of Powers

A range of consequences follow including the need for a separation

of powers between the lawmaker, the executive and the courts and the

giving of special weight to individual rights. Moreover there must

be political machinery to ensure that the actions of public officials

serve the common good. This includes open government, a right to

reasons for decisions and frequent elections. There must also be legal

mechanisms to ensure legality. In this connection the extended rule of

law has concrete recommendations about what should be done in

order to ensure that all relevant points of view are treated with equal

respect. These include judicial review (Chapter 16), the Human Rights

Act 1998 (Chapter 18), and the freedom of the media to criticise

government (Chapter 19).