The Rule of Law is not a Law of Rules1
Annual Quayside Oration
Perth
In his short, but important, book entitled "The Rule of Law", published not long before his untimely passing, Lord Bingham traced the sources and history of the phrase and the conception of the Rule of Law. As his Lordship acknowledged in the introduction, much is owed in this respect in modern English law to Prof A V Dicey, and especially to the three meanings he gave to the phrase: first, that no-one is to be punished except for a distinct breach of the law established in an ordinary legal manner before the ordinary courts; secondly, that no-one is above the law, and everyone (whatever rank) is subject to the law and to the ordinary courts; and thirdly (which he took as peculiarly English), a pervading legal spirit of freedom in the common law, rather than in constitutional conceptualisation, as in foreign countries.
Dicey's third meaning helpfully draws attention to something that I wish to discuss – that is, that the Rule of Law is a state of affairs and an attitude of mind, as much as, if not more than, it is an abstracted principle or body of rules.
The first two of Dicey's points reflect Aristotle's expression of the matter in Politics and the Athenian Constitution: "It is better for the law to rule than one of the citizens … so even the guardians of the laws are obeying the laws." [2]
Within these conceptions there is a political framework – not a narrow party political framework, but one that has as a constituent element the subservience of all power to the law of the polity. For that to be beneficent to the objects of the exercise of power – that is, to the people against whom power is exercised – the law must not be the mere instrument or tool of the powerful, who at any one time make the rules. The Rule of Law, as we broadly conceive it, must have within it a conception of legitimate representative organised power reflecting values, both democratic and social, that make subjection to the Rule of Law an aspect of civil society's protection of the individual, not an aspect of domination by the powerful.
Two aspects of the Rule of Law that are to be taken as foundational are the independence of the judiciary and the independence of the profession, especially the Bar. I take as a given this independence. It is a topic in itself. What I wish to discuss tonight are other aspects of law that go to the heart of the conception of the Rule of Law. This involves a discussion of the limits of definition (and so the limits of rules), the importance of language (but the limits of text), and the necessary social and experiential contextualisation of all important ideas and ideals that make up what we call the Rule of Law.
Lord Bingham's book reflects the importance of the condition of society in various respects to understand the condition of the fabric of the Rule of Law, such as the need for the law to be accessible in its coherence and writing, and for the courts to be financially and practically accessible. Also important are the resolution of legal rights and liability by law not by the exercise of discretion or choice; equality before the law; the control of the exercise of state power reasonably, fairly, in good faith and for the purpose for which the power was conferred; and the adequate protection of fundamental human rights. The multiplicity and many-faceted textures of these subjects illustrate well the notion that the Rule of Law is comprised of a lawful civil society in which individuals and society are protected by a framework and an approach based on the application of principle and rules by those apart from the politically powerful.
This way of looking at the question, however, does not illuminate an important and more pervading consideration – that the law is human in its character, and in its object. Law, being society's relational rules and principles that govern and control all exercises of power, must have a character and form that is adapted to, and suited for, application to law's human task. An appreciation of this humanity of the law is central to its proper expression and to preserving its strength.
Law, at its very foundation, is conceived and derived from values. These values inform and underpin a fair and reasonable expectation of how power should be organised, exercised and controlled at the private and public level. These values find their expression not only in the formal law, but also in societal expectations, behaviour and actions. These transcend cultural boundaries. They lie in the heart of every individual, and at the heart of society – as human values. They are honesty; a rejection of unfairness; an insistence on essential equality; respect for the integrity and dignity of the individual; and, mercy. Each goes to the core of what we understand humanity and the individual to be, and to what is expected when power is exercised by, or against, individuals. Dignity lies at the foundation of self, and ultimately informs the rejection of unfairness. These values find expression in the rules, principles, precepts and norms developed by society and by the law. But the nature of these values is such as to make it necessary to recognise the limits of text in their expression, drawn ultimately, as they are, from the human condition, and the intuition and sensibility therein. They do not admit of minute definition. Words can often be inadequate to express the subtlety of human relations.
The law, in its creativity and flexibility, has drawn upon these values in numerous manners and forms. The concern of public law to prevent the exercise of power which is arbitrary, capricious, or unreasonable can be seen to reflect a concern with rejecting unfairness. This is the reasonable expectation of each individual that power will not be exercised against her or him in a manner that fails to respect her or his integrity and dignity. The same can be seen in the concern of private law to prevent unconscionability and to deter behaviour that is antithetical to honest, reasonable, mutually beneficial commercial relations.
There is an important balance to be struck in this respect. Legal systems and societies cannot be built or sustained by reference only to generally expressed values. Neither, however, can they be built upon a myriad of strict, textually expressed rules alone. Rather, a balance must be struck of rules, principles, precepts, norms and values; a balance which recognises the requirement that rule and principle conform to moral standards as the gauge of the law's flexibility, as its avenue for growth, and in order to accommodate changes in society's conceptions of the application of unchanged values. The balance must also recognise the need for a coherent structure of rules, the absence of which may confound law by a drift into a formless void of sentiment and intuition.
Sir Maurice Byers was a great Australian lawyer. In 1987, in a powerful article on the advocate's view of the judiciary, he wrote:[3]
The law is an expression of the whole personality and should reflect the values that sustain human societies. The extent to which those values influence the formulation of the law varies according to the nature of the particular legal rule in question.
Sir Maurice was referring to the humanity of the law, from which one draws an insight into legal and judicial technique, the nature of law, and the content of the Rule of Law.
The notion of law as an expression of the whole personality directs one to the human. A personality is a human attribute, an outward expression of the character of the whole. It is incapable of definition. It can be described, though not fully. It is neither understood nor described by breaking it down into separate component parts (if they be separate at all), though the parts may help one understand the whole. It is full of contradiction. It is made up of the explicit and the implicit, the clear, the contradictory and the ambiguous. It lives relationally, as part of human exchange and experience.
Rules and textual expression of logically constructed and organised ideas are central to a coherent body of law. But where is the place of logic and of organised abstracted ideas in a personality? Taxonomy is an abstraction of the mind. It is the disembodiment of the whole into its parts, and their placement into an organised logical structure. It can be seen as a depersonalised abstraction; but it can also be seen as a human feature – as part of the human search for order and security. It is a way of thinking abstractly, in particular about parts and their ordering, as opposed to thinking about the whole and its character, including its implicitness – about its whole personality. There is much, therefore, to be said in thinking about the law of the relationship between abstraction and theoretical taxonomical ordering of the parts, on the one hand, and a feeling of the human, the relationally experiential and the contextual, on the other.
The description of the law as an expression of the whole personality implies the wholeness of the law, and the humanity of the law, as something constructed of more than (but including) organised abstractions and rules.
None of this is to deny the central place of articulation of rule, of clarity, of precision, of logic, of abstracted ideas, and, where helpful, of the giving of coherent taxonomical form to necessary abstractions of rules. But it is to deny the complete dominion or hegemony of such, as the essence or nature of law. That denial is necessary for doctrine to be shaped in human form, and for the application of law to control power in human society. At times, this requires the recognition of the limits of text and expression. Sometimes striving to define, in order to reach greater precision and clarity, is counterproductive. It brings lack of clarity and false distinctions when the subject does not yield meaning beyond a general expression. The experientially informed principle or rule is left at the appropriate degree of generality, to be judged against the facts.[4] The question, so often, is: At what point definition and further expression confound, not clarify?
Taxonomy's relationship with the messiness of reality is important for law. Taxonomy too simplistically arrived at will see the complex and subtle made falsely simple. Taxonomy too elaborately structured will see the simple made complex, and the complex made incomprehensible, with false distinctions and dichotomies, definitions and distinctions without difference, making the meaning of the whole obscure.
The balance of Sir Maurice's sentence that the law should reflect the values that sustain human societies directs one to the relationship between rules and values. The derivation of rules from values, and the importance of values to the law is explained and illuminated by focusing on the way life and experience, as much as abstracted theory, shape the law. It may, of course, be as simple as recalling Holmes' most restated aphorism: The life of the law is experience, not logic.
The humanity of the character of law, the relationship between rules and values, and the realisation that a just civil society is not based on expressed rules alone, but something far more subtle and complex, are all features central to the conception of the Rule of Law. These features might be seen to inform and illuminate Dicey's legal spirit of freedom and the wonderful speech of Learned Hand "The Spirit of Liberty".[5] Though the critical values that inform the law (the dignity of the individual and the rejection of unfairness) are conceptions (that is, abstractions), they are conceptions that are derived from emotion, sentiment, the human condition and social experience. These values come from life and experience. Thus, as important as the contrasting of rules and values is the recognition of the relationship between the abstract (in its different forms) and the experiential (in its countless unique manifestations). It is from the experiential that the abstracted human values that sustain societies manifest themselves in concrete situations, in law and in society, and so, as abstractions, gain recognition and importance in real life. It is the human and the experiential that give the proper context for the derivation and expression of rules, principles and law. From that derivation, rules, principles and law become infused with values.
Let me first illustrate the place of humanity, values and the experiential in the development of high constitutional principle in maintaining the integrity of the judicial process. In 1996, in Kable v DPP (NSW),[6] the High Court was faced with an act of state power (by the Parliament of New South Wales) that purported to permit preventative imprisonment. Mr Kable had been convicted of a violent crime: the manslaughter of his wife. As he approached the end of his sentence, he sent letters from prison to individuals that caused it to be thought that, upon release, he might well commit further violent crimes against those individuals. An Act of the New South Wales Parliament was passed that provided for his continued detention by order of the Supreme Court, upon satisfaction of certain conditions (not being conviction of any crime). The argument of Sir Maurice Byers on Mr Kable's behalf reached to the very foundations of civil society: he submitted that the statute was not a law, but rather, in substance, an order to the Court to imprison Mr Kable; he submitted that the New South Wales Constitution assumed the Rule of Law as a constitutional imperative, the continuation of which was a working assumption of the Australian Constitution; he submitted that the statute was inconsistent with a basal element of representative parliamentary democracy thus founded on the Rule of Law, by its call for imprisonment otherwise than pursuant to conviction for an offence and its undermining of State courts making them unfit for the investiture of federal jurisdiction.
Aspects of these arguments were woven into the reasons of the majority;[7] a critical feature being the centrality of Ch III of the Constitution. Justice Gaudron's starting point was the constitutional structure of an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth.[8] The Court was concerned with the freedoms and liberty upon which Australia's whole system of government is founded. The Court held that the Judicature is vested with a form of power distinct and different from executive and legislative power; the power is based on pre-existing law and, as part of its essential fabric, the execution of judicial power is constitutionally required to be fair, equal and just. This is not rhetoric. These features were said to be part of the defining character of the power. They are features that reach back to the rejection of inequality of status that had been the foundation of the Ancient World, and to the later Medieval recognition of one woman's or man's soul (however lowly she or he were born) as the spiritual equal of the soul of a king.[9] The forging of the place of the individual, and the recognition of her or his human dignity lie at the root of our conceptions of fairness and equality, and the content of judicial power. They are the features that engender the consent, trust and respect of society in the administration of justice in its daily contact with people, often in circumstances that can be productive of distress, a sense of abject failure and crushing humiliation. The driving influence of the human demand for dignity and the rejection of unfairness is an immanent human response.
The prohibition upon the Parliament conferring functions on courts that are incompatible with their essential features of judicial power protects courts, as the vehicles for judicial power, from any suggestion that they wield power other than fairly, equally and justly. This creates and protects a constitutional guarantee of liberty (that is perceptible to all lay people) that State power will be judged fairly, equally and justly by the institution recognised by the Constitution to undertake that task: the Judicature. These are not just high abstract notions, they are human conceptions to be felt and experienced. Thus, the organisation of power and the independence of judicial power come to be important elements in reciprocity and consent, as part of the sovereignty of the people. These considerations pervade Kable and are why it is of such enduring importance within Australian public law.
The nature of judicial power has been often described and articulated. An exhaustive definition is elusive. That is because it is a form of power and because it is part of a societal institutional relationship – the place and role of the judicature in society. An enduringly important articulation of judicial power, which anchors the notion of the Rule of Law in the judicial function, is that of Gaudron J in Nicholas v The Queen.[10] It is a luminous expression of the abstract by describing the real:
… the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.[11]
One sees in this articulation a strong structure of rule and principle, but weaving in values and their indefinable texture, to create the strength of a whole conception rooted in fairness, dignity and equal treatment before and by the law, in its practical and real life application.[12]
The nature of judicial power, the judicial technique involved, and its inhering conceptions lie at the heart of the Rule of Law.
Fairness, justice and equality before the law and their reflections in a lack of arbitrariness, and a lack of differential treatment or discrimination without a reasonable relation to a proper objective, characterise the judicial process and its expected outcomes.[13] The norms and conceptions inhering in the exercise of judicial power incorporate from their roots in the common law the norms that now characterise international human rights - a rejection of inequality, arbitrariness, discrimination, unfairness, injustice and cruelty. That the common law and legal punishment in earlier eras exhibited a severity that might shock today, does not mean that by the values and political and legal structures of the time any severity could not be justified (that is a question of historical moral philosophy), nor does it mean that contemporary conceptions of punishment need embrace any such severity. Indeed, these considerations reveal the effect of changing circumstances on the content of law and its informing norms moving, as Cardozo described customary morality moving "silently and unconsciously from one age to another".[14]
In criminal law – the epitome of public law – one sees the interplay and balance between rule and value, and between the abstracted expression and the experiential.
The need to define, with clarity, the limits and content of criminal liability is clear, indeed, perhaps self-evident. The law as to criminal responsibility should be as certain as possible, with as little place for value judgment as is reasonably possible.[15] This is so even though the criminal law is regulating human relationships and experience from where the substantive content of the rules of liability must be derived. If the rules of criminal responsibility do not conform to, and are not expressed by reference to, and in language conformable with, the relationally human and the experiential, they will lose community consent and respect.
To recognise the central place of the expression of the rule in criminal liability does not detract from the force of something I said earlier about the limits of text. Rules are necessary to make clear the line past which the citizen becomes criminal and becomes subject to punishment. But the conception of wrongdoing is relational and experiential, and at some point in the expression of the rule clarity is best achieved by ceasing to define, or clarity is impeded by, continuing to define.[16]
The more one defines human wrongdoing by abstracted language, the further one takes the expression of the wrong from the human relational reality. The crime may cease to have a clear human meaning and it may come to lack a quality of recognisable wrongness. It may thus garner less acceptance from the community as a wrong. Punishment for conduct not viewed as wrong undermines the Rule of Law.
Upon conviction, the criminal must be sentenced to punishment. From the universe of liability where rule is central to legitimacy, one moves to a universe where rule is part, but only part, of an exercise that is experientially intuitive at heart. Rule plays a part because sentencing must be undertaken in accordance with relevant legislation. But it is the human response which dominates. The duty of the sentencing judge is, as the High Court said in Elias, "to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances".[17] The instinctive synthesis[18] is the human, and not mechanical or mathematical, response to the circumstances and to the often conflicting factors and considerations. There are no quantitative boundaries or rules of literal application in sentencing. It is a process concerned with individualised justice in the context of the offender's relationship with society. It is the evaluation of the human context of the offender and society that marks the process, eschewing any structured approach, or mechanical application of any abstracted rule.
These themes have dominated the jurisprudence of the High Court since Wong.[19] The experiential, the implicit and the importance of feeling to the human circumstance allows the Court, as an institution, with its experience and knowledge to express its response as the manifestation of just state power to the inherently human, infinitely varied, often tragic and violent situations before it. One cannot reason out in logic, or even describe, except by conclusions evoked from human feeling, why the sentence imposed on the step-father in Dalgliesh,[20] who had committed incest with his step-daughter of under 14 years was manifestly inadequate. A universe of factors can be expressed, but the conclusion can only be reached intuitively by contemplation and elucidation. The comprehensive expression of the precise weight and importance of each factor is impossible, because the task is the assessment of the whole by reference to a human judgment of appropriateness and justice, based on experience and instinct.
The concurring judgment of McHugh J in Markarian illuminates these concepts with literary power in a piece of writing of devastating force. His Honour cited[21] the gritty blunt expression of the depression years of Sir Frederick Jordan in Geddes,[22] that evokes in the mind the human circumstance, reality and tragedy of Mr Geddes' crime – the drunken beating to death of his physically more powerful rival after the taunts of his estranged partner – an intended "thrashing" that ended a life. It is from the articulation of the reality that the justice of the response, so long ago, is still felt. This is law and justice, because it is not all abstracted rule. This is why McHugh J was so correct, if that expression be permitted, when he stressed in Markarian[23] the importance of the transparent articulation of the instinctive synthesis. I would only respectfully add that the articulation requires the direct language of life; and also that there exist limits, and a likely ultimate inadequacy, of that articulation, because of the nature of the conclusion as, at least partly, an implicit human response of feeling to the circumstances of life and the human condition. It is the feeling from which, at least in part, the law springs.
Sentencing can perhaps be seen as a modern judicial metaphor of the medieval theory of kingship in The King's Two Bodies,[24] the societal response is administered by a human, but one necessarily abstracted; an abstracted representation of human society. Abstraction and humanity come together in a person and an office.
The contradictions, the requisite balance, and the inability to draw workable and legitimate conclusions only from the application of abstracted rules or logic in this field can be seen and understood in Haynsworth CJ's expression of the purpose of the criminal law and its character in US v Chandler,[25] cited by Gleeson CJ in Fardon.[26] Chief Judge Haynsworth in Chandler expressed the sometimes hard human reality of the criminal law as part of the fabric of the Rule of Law that protects society. That protection and the human place of law in that role mean that precise scientific explanation, whether medical or psychiatric, of the human condition and aberrant or violent conduct, does not always lead, as a matter of logic based on scientific explanation, to immunity from punishment. Society must first be willing to accept that immunity.[27] The working through of these ideas in Australia is seen in the human tragedies in Veen (No 1)[28] and Veen (No 2),[29] and in the justification for preventative detention in Fardon.
Private law is no different in its need to recognise the human and societal dimensions involved in the control of power and to take into account the values that surround private relations. Commerce and trade, in particular, have long held a central place in the formation of sophisticated legal systems, largely because they produce the need for rules of relational activities.[30] Commercial law must be certain, but fair and just; simple and practical, but comprehensive; and it must be able to be employed and enforced without undue expense, delay or confusion. A central obligation of the commercial lawyer and the commercial judge is to understand the limits of legitimate self-interest and the relationship between self-interest, in its inherently selfish character (that is, the search for commercial gain), and honesty, reasonableness, mutual respect, reciprocity, decency and trust, being the qualities that make it possible for commercial people to be self-interested, but to at the same time deal with each other peacefully, with mutual benefit and to promote long term commercial success.
It has been said that the law should facilitate and not hinder commerce.[31] That is so, but it is honest commerce that is to be facilitated; dishonest commerce is to be hindered. The norms that will bear upon the answer to whether an activity should be facilitated or hindered are the values we bring to our rule making and rule application in commercial law.
We can see this place of values (not necessarily limited to, and often quite different in their private source from, the essential human values to which I have referred) within the process of contractual analysis. How contracts are to be understood, how they are to be given meaning and how they are to be given operation are questions of technique and legal policy of the highest importance. Often those processes of understanding, meaning and operation take place through interpretation and construction, fact-finding, and rule-application; but sometimes there is something more happening – something different, something further, something less precise and not amenable to logical expression or definition, which I will call characterisation. Generally this process is one where a value judgment is made by reference to ascribed meaning, found facts, an expressed rule or principle and the relevantly organised values that are to be brought to bear for the task. It is those values that are often disguised, hidden and suppressed by the search in text for rules. A similar process of balance between rule and values can be seen in the place of rules and implications that assist in many other tasks in the operation of commercial law.[32]
Let me say a little more about certainty in commercial law and for the Rule of Law. Certainty and predictable coherence is a basal feature of a mature and civilised legal system. Stability and coherence are part of human needs. In commerce, the less certainty, the more risk; the more risk, the higher the cost.
But certainty is not gained by the written word alone. It is derived and felt from an understanding of a stable and known position. That comes as much from a known demand for trust, honesty and a lack of sharp practice as it does from clarity of expression. Certainty is made by strong, clear, reasoned principles based on trust, honesty, reason, common sense and good faith. These are human values and qualities not definable, but regularly displayed and recognised, by commercial people.
New York is, and was in the early 20th century, a world commercial centre. It was then, and still is, home to judges of great commercial acumen. In the 1920s and 1930s, these judges included the great Cardozo. Not only was he a great lawyer and judge, but also he wrote with a style and grace that exemplified the importance of language to law. Language is not merely the vehicle of meaning, it is a source of law, because it has the capacity to excite meaning and understanding through feeling. The illumination of an idea by the sometimes crystal light of language gives the idea a quality that distinguishes it. From his famous dictum in Meinhard v Salmon encapsulating the nature of the fiduciary duty one cannot obtain a better sense, feeling or sentiment of fiduciary trust:[33]
A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behaviour.
In another case about the characterisation of terms as dependent or independent, he said:[34]
Considerations partly of justice and partly of presumable intention are to tell us whether this or that promise shall be placed in one class or another … Intention not otherwise revealed may be presumed to hold in contemplation the reasonable and probable. If something else is in view, it must not be left to implication. There will be no assumption of a purpose to visit venial faults with oppressive retribution.
Chief Judge Cardozo then went on to say something of symmetry and logic, saying:[35]
Those who think more of symmetry and logic in the development of legal rules than of practical adaptation to the attainment of a just result will be troubled by a classification where the lines of division are so wavering and blurred. Something, doubtless, may be said on the score of consistency and certainty in favour of a stricter standard. The courts have balanced such considerations against those of equity and fairness, and found the latter to be weightier …Where the line is to be drawn between the important and the trivial cannot be settled by a formula.
These words reveal the importance of the human and the just as well as of the word in commercial law. That is because law is to be felt as well as read to be understood. Commercial people do that for a living in their own daily relational activity.
I am not intending by saying anything this evening to devalue for law or the Rule of Law the central structural place of rules and principles clearly and fully expressed, where possible, in an ordered and logical way. Far from it. Rather, I seek to protect their value by recognising that they are threatened by a failure to accord the place of the wholeness of the human context. Sometimes that failure, with the consequent risk to clarity, can be seen in statutory drafting; sometimes it can be seen in the complexity or rigidity of doctrinal expression.
We live, at least with much Commonwealth legislation, in an age of detailed deconstructionism, of rampant reductionism. The elemental particularisation of modern day legislation – its deconstructionist form, sometimes arranged more like a computer program than a narrative in language to be read from beginning to end – reflects a modern cast of mind intent on particularity, definition and taxonomical structure, that is scientific only in a mechanical Newtonian sense. If legislation is to be built on complex and interlocking definitions, or if doctrine is to be ordered minutely in the attempt to express exhaustively the minute reach and particular application of the underlying norm, there comes a point where the human character of the narrative fails, where its moral purpose is lost in a thicket of definitions, exceptions and inclusions. The vice is not just lack of clarity; that is bad enough. Worse, it is a loss of human context, a loss of the expression of the human purpose of the law. Language is vital for the expression of the idea in a way that makes its implicit boundaries, context and meaning understandable, if not entirely explicable. To deconstruct into parts and to attempt to express by the exhaustive expression of all the parts may not give an understanding of the whole because it may hide the implicit in the whole: that which emerges only from the whole.
Law is not just command; it is societal will amenable, to a point, to rational and general expression, engendering loyalty and consent through its utility, practicality and humanity, and through its characteristics of certainty, fairness and justice. That amenability to expression must recognise, however, the limits of text to which I have referred. Law can, ultimately, only work practically and usefully through consent and loyalty. And no system of law can engender loyalty and consent without an inhering justice – some intuitive response from acceptable and accepted values, not necessarily by reference to each individual provision within the system, but by reference to its whole. Nothing is perfect. Further, no system of law can engender a sense of security without an acceptable degree of certainty. The need for balance of, and the inevitable relationship between, rules and values and their interconnectedness should be recognised as a central feature of the law and the administration of justice. There is no point pretending that such complexity can be addressed by eliminating values and textually expressing more rules. That process is just to create other values, and likely darker ones, masquerading as rules.
That the law is drawn in part from an indefinable human source – a source of feeling, of emotion, of a sense of wholeness – gives it a protective strength in the service of human society. That source of feeling and emotion includes a sense of, or need for, order or stability, but order in its human place informed by the dignity of the individual, and not overwhelmed by abstraction and taxonomy. That partly indefinable sense of wholeness of the law provides the systemic antidote to logical reductionism that, on its own, would see the law as the sharp instrument of those who control power. That justice cannot be defined is its inherent strength.
Assessing how power (public and private) should be controlled and exercised in society is the daily task of the law. Law is not value-free. Law is not built and defined solely by rule making, by formulae or by inexorable command, but rather it is organised around, and derived from, inhering values (human values) and serves as an expression or manifestation of natural (and experientially founded) human and societal bonds of conduct.[36]
The Rule of Law lives in the recognition by society of the human character of law: its essential underpinning human values – honesty, equality of treatment, a respect for the dignity of the individual, the rejection of unfairness, and mercy; in the place of an independent judicature and an independent profession; and in the judicature's exercise of its accompanying irreducible protective power. Thus it is not just a principle or a slogan, it is, as Dicey and Hand said, a spirit of liberty and freedom that lives in everyday action and in the highest and also the most prosaic tasks in the law.
[1] The paper is a merging of the ideas in two previous papers from which I have drawn: Hochelaga Lecture Series 2016, Values in Law: How They Influence and Shape Rules and The Application of Law, Hong Kong, 20 October 2016; 2017 Sir Maurice Byers Lecture, The Law as an Expression of the Whole Personality, Sydney, 1 November 2017.
[2] Book III, s 1287.
[3] Sir Maurice Byers, "From the Other Side of the Bar Table: An Advocate's View of the Judiciary" (1987) 10 University of New South Wales Law Journal 179 at 182.
[4] See for example, the "unacceptable risk" of sexual abuse of a child to justify an order denying a parent custody of a child: M v M [1988] HCA 68; 166 CLR 69 at 78.
[5] Judge Learned Hand, 'The Spirit of Liberty' (Speech delivered during I am an American Day, New York Central Park, 21 May 1944).
[6] Kable v Director of Public Prosecutions for NSW [1996] HCA 24; 189 CLR 51.
[7] Toohey, Gaudron, McHugh and Gummow JJ.
[8] Kable v Director of Public Prosecutions for NSW [1996] HCA 24; 189 CLR 51 at 99-108.
[9] Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014) at 60-62, 83.
[10] [1998] HCA 9; 193 CLR 173.
[11] Ibid at 208-209 [74].
[12] See also Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 27; Polyukhovich v Commonwealth [1991] HCA 32; 172 CLR 501 at 607 and 703-704; Lowe v The Queen [1984] HCA 46; 154 CLR 606, 610-611, 613 and 623-624; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301-302; R v Green [2010] NSWCCA 315; 207 A Crim R 148 at [3]; Green v The Queen [2011] HCA 49; 244 CLR 463 at 472-473 [28]; and Kioa v West [1985] HCA 81; 159 CLR 550 at 584-586, 601 and 612-615.
[13] Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [15]; and see the discussion of these issues in Karim v The Queen [ 2013] NSWCCA 23; 301 ALR 597 at 610-612 [50]-[58] and 623-626 [102]–[122].
[14] Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press, 1921) at 104-105.
[15] Taikato v The Queen [1996] HCA 28; 186 CLR 454 at 466. There are exceptions. Sometimes an evaluative assessment is a central part of an offence. The offence of wilful misconduct in public office includes as elements of the offence "wilful misconduct, by wilfully neglecting or failing to perform his duty in a way that merits criminal punishment": R v Quach [2010] VSCA 106; 201 A Crim R 522 at 535 [46]; R v Obeid (No 2) [2015] NSWSC 1380 at [22] and [111]-[121]; Obeid v R [2017] NSWCCA 221 at [60] and [201]-[235].
[16] For instance, the criminal cartel provisions of the Competition and Consumer Act 2010 (Cth) (Ch 2 is applied by s 6AA of the Competition and Consumer Act 2010 (Cth) to offences under that Act) when read with the Commonwealth Criminal Code and the definition-ridden insider trading provisions of the Corporations Act 2001 (Cth) (pt 7.10, div 3) are perhaps examples of more text leading to less clarity.
[17] Elias v The Queen [2013] HCA 31; 248 CLR 483 at 494 [27].
[18] Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]-[52] per McHugh J.
[19] Wong v The Queen [2001] HCA 64; 207 CLR 584; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Hili v The Queen [2010] HCA 45; 242 CLR 520; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; Elias v The Queen [2013] HCA 31; 248 CLR 483; Kentwell v The Queen [2014] HCA 37; 252 CLR 601; CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 356; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 349 ALR 37.
[20] [2017] HCA 41; 349 ALR 37.
[21] Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 383-384 [65].
[22] R v Geddes (1936) 36 SR (NSW) 554 at 555-556.
[23] 228 CLR at 390 [84].
[24] Ernst Kantorowicz, The King's Two Bodies (Princeton University Press, 1957).
[25] 393 F 2d 920 at 929 (1968).
[26] Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at 589 [11].
[27] Chief Judge Haynsworth said: "The criminal law exists for the protection of society. Without undue harm to the interests of the society it protects, it can exclude from its moral judgments those whose powers of intellect or will are so far impaired that they have no substantial control of their conduct. … The law may not serve its purpose, however, should it embrace the doctrines of determinism. Should the law extend its rule of immunity from its sanctions to all those persons for whose deviant conduct there may be some psychiatric explanation, the processes of the law would break down and society would be forced to find other substitutes for its protection."
[28] Veen v The Queen [1979] HCA 7; 143 CLR 458
[29] Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465.
[30] Plato noted that where there is maritime commerce there must be more law: Laws, Book 8, 842; Montesquieu said that there were more laws in a trading city: The Spirit of Laws Liv.XX, Chapter 18; Jhering spoke of commerce as a pathfinder: Zweck im Recht, I, 237; see also R Pound, The Formative Era of American Law (Little Brown, 1938), at 11-12.
[31] Lord Justice Devlin, "The Relation Between Commercial Law and Commercial Practice" (1951) 14 Modern Law Review 249, at 250, 261-263 and 266.
[32] The place of the weighing of values can be seen in the characterisation of essential or intermediate terms; giving effect to the elements of a duty of good faith and fair dealing; the implied engagement to do nothing to put an end to the circumstances by which the contract can take effect (Stirling v Maitland (1864) 5 B&S 840 at 852; 122 ER 1043 at 1047 (Cockburn CJ)); the implied agreement to do all that is necessary to be done for the carrying out of what has been agreed (Mackay v Dick (1881) 6 App Cas 251 at 263 (Lord Blackburn); the implication that each party will do all things necessary on his part to enable the other to have the benefit of the bargain (Butt v McDonald (1896) 7 QLJ 68 at 70-71 (Griffith CJ)); and the construction of every express promise as containing a negative covenant not to hinder or prevent fulfilment of the express covenant (Shepherd v Felt & Textiles of Australia Ltd [1931] FCA 21; 45 CLR 359 at 378). It can also be seen in: the implied obligation to act honestly and reasonably in exercising a right to rescind a contract unless satisfied with finance (Meehan v Jones [1982] HCA 52; 149 CLR 571); the limitation of clauses in a building contract as to satisfaction of a state of affairs to a reasonable construction meaning only what is reasonable and just (Stadhard v Lee (1863) 3 B&S 364 at 371-2; 122 ER 138 at 141); the limitation of a clause giving absolute discretion to remove work from a contract to what is reasonable (Carr v JA Berriman Pty Ltd [1953] HCA 31; 89 CLR 327); the limitation of a right to rescind a sale of land if unable or unwilling to comply with or remove an objection by the purchaser to what was not unconscionable (Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36; 128 CLR 529 at 538) or not arbitrary or unreasonable (Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36; 128 CLR 529 at 543, 547, 549-555; and see Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13; 130 CLR 575).
[33] 249 NY 458 at 464 (1928).
[34] Jacobs & Young v Kent 230 NY 239 at 242 (1921).
[35] Ibid at 242-243.
[36] William JV Windeyer, Legal History (Law Book Company of Australasia, 2nd ed, 1959) at 3.
