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The rule of law: what does it really mean?

By John de Meyrick - posted Wednesday, 1 July 2015


The term, "the rule of law" is constantly used by politicians, journalists, commentators and others as meaning that everyone is subject to the law and everyone must abide by the law.

Also, in this 800th anniversary year of the sealing of Magna Carta, it has been said and written by commentators that it was Magna Carta in 1215 that established the rule of law.

These usages of the term are not entirely correct and in some contexts they can be altogether misleading.

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The rule of law does make everyone subject to the law but its correct meaning lies in its importance as a concept of governance. A constitutional framework for the way a community, state or country is, or should be, governed (as is the case in Australia).

In essence, it means that we are ruled by the law of the people, not by the arbitrary law of a superior individual or power group operating above the law.

So when we speak of the rule of law it should not be used out of context to just mean that everyone is bound by the law or must not do things that are illegal, but rather to mean that no one, nor any instrument of government, with delegated authority should be allowed to make arbitrary decisions affecting the rights of others without due process under the law.

A good example of this is the present debate over whether the Minister For Immigration should have the absolute power to cancel a person's citizenship without the right of that person to have the Minister justify that decision in accordance with the rule of law.

This concept of governance derives from ancient times when a leader was chosen (elected) for his strength and leadership qualities, not as a ruler with superior power, but as the first of equals. One who would uphold the customary laws and the ways of the tribe or kingdom as evolved and accepted over time for the civil order and harmony within society.

A condition of this concept was that, whilst the king governed on this basis his barons would swear loyalty to him and remain faithful. But if he failed to honour that obligation he could be risen up against and replaced.

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The problem in those times was that, without true commitment and the means of enforcing and perpetuating such agreements (of which there were other similar charters both before and after the 1215 Magna Carta) kings would simply repudiate their undertakings, express or implied, and become supreme and arbitrary rulers giving rise to repeated internal conflicts.

This concept became even more difficult to maintain with the advent of royal succession and primogeniture, whereby male heirs to a king's land and property would also claim the automatic and divine right to the Crown as well.

As Charles I was to assert in 1648, that his authority to rule had been given to him by God. (He lost his head nevertheless.) Earlier in 1610, James I had dismissed the Chief Justice, Sir Edward Coke (pro: "Cook") for holding that the king was not supreme over parliament and the common law.

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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