Rule of law: what is it? Why should we care?

• Author: Billingsley, Barbara

Imagine ...

Living in a society where one day, while you are safely and reasonably driving your new car down the street, you are pulled over and arrested solely because the arresting police officer doesn't like the colour of your car. After being released from jail, you paint your car another colour and then are pulled over and arrested again because a different police officer doesn't like the new colour of your car.

Imagine ...

Living in a society where the government prohibits murder but refuses to arrest or prosecute a high-ranking government official who intentionally shoots and kills an innocent person for no discernible reason in front of several eye-witnesses.

Imagine ...

Living in a society where, at any moment, without any warning and without following any particular procedure, the government could seize your home, your children, or your bank account.

As residents of a western democracy, we instinctively know that the type of society depicted in any one of the above examples is unacceptable. There is something inherently wrong with a legal system that would allow a citizen to be arrested solely on the whim of a police officer or that would not apply the law to the law-makers or that would not require the government to follow predictable and established procedures before drastically impacting the lives of citizens. So, the need to reject the legal systems depicted in the examples seems obvious to us. But what exactly is it about the above examples, which enables us to so quickly and certainly reject the societies depicted? What is the common feature of each example that makes the society pictured so intrinsically abhorrent? What is the essential feature of our democratic society which is absent in each of the examples? The answer to all of these questions--the reason that we are instinctively able and compelled to denounce the societies illustrated in the examples -- is that each of the examples depicts a society operating without the Rule of Law.

What is the Rule of Law?

Defining the Rule of Law is, in many ways, like trying to define the meaning of life. Like the meaning of life, the Rule of Law is a basic, essential, and fundamental concept that has been wrestled with by philosophers, individuals, and societies for centuries and that, in the end, can be different things to different people. Also like the meaning of life, however, the main problem with the Rule of Law lies not so much in knowing what it is, but rather in putting that knowledge into words.

Thousands of books and articles have been written by people in various fields of study or enterprise, all trying to capture in words the essence of the Rule of Law. Some of the most concise, comprehensive, and understandable descriptions of this principle, however, have come from the Supreme Court of Canada. While recognizing that the Rule of Law is "a highly textured expression, importing many things", the Supreme Court of Canada has generally summarized the Rule of Law as "conveying a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority" (Reference re Resolution to Amend the Constitution, 1981). The Supreme Court has also said that "at its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action" (Reference re Secession of Quebec, 1998).

But exactly how does the Rule of Law lend order to society? What are the components or elements of the Rule of Law which lead to the structure and accountability described by the Supreme Court of...