2. Rule of Law. Thin/procedural (Raz) & Thick/substantive interpretation of rule of law

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1 2. Rule of Law The rule of law underpins the system of democracy/hallmark of liberal societies In general terms the rule of law requires that government should be in accordance with rules (B&B). Rule of law term coined by English Jurist AV Dicey: 1. No one can be punished for breaking the law except by order of the courts 2. no one is above the law and everyone is subject to the same law applied in the same courts (Dicey) 3. The Law is the result of previous judicial decision determining rights of private persons. Elements? 1. Constitutionality: The Constitution has superior riles above the political sphere which dictate how the government can govern & be governed. No arbitrary use of power, limits government power. 2. Fairness: Everyone is equal before the law including government, government are not above the law. Constrain government power. 3. Aims to protect the rights & liberties of citizens 4. General: law addresses class/group of ppl equally, not one person 5. Predictability a civilian is aware of laws to abide by & knows what will happen if the laws are broken, they can plan their lives accordingly. Is against retrospective law (expect in some circumstances like WW2 post Nazi retrospective laws enabled war crimes to be pursued by a court of law) 6. Rationality: law needs to be rational 7. Consistency: law applies to everyone in the same way 8. Stability: laws cannot change too often (but need to keep up with times, such as abolishing martial rate immunity) 9. Impartiality: impartial judiciary separation of powers judges can make decision freely without executive & legislature influence. a. Judicial independence: allows functioning system, separation of power prevents too much arbitrary power, courts to act independent of government influence i. Judges to apply law as legislation intended enables their independence to prevail. b. Separation of power: power should not be held in one section of state rule. Rule of law & human rights Rule of law provides a basis for fundamental human rights (e.g. right to live, right t liberty) Rule of law is often referred to in human rights documents e.g. Universal Declaration of Human Rights 1948 Without rule of law too much power would be held in by the government, tyranny or a lawless state. For example North Korea, & Zimbabwe = dictatorships Thin/procedural (Raz) & Thick/substantive interpretation of rule of law Thin/Procedural (Raz adopted) - doesn t take into account human rights - rule of law not related to morality - Law must be predictable - independent judiciary & separation of powers (Raz) (government, legislative & administrative arms subject to review) - law must have certainty, stable, not constantly changing (Raz) - law has to be general (not targeting certain individuals) - law applied equally to everyone despite power, social status, money - Procedural compliance - Open & fair trials (Raz) - Public, available, transparent, clear, unambiguous, open to everyone [no secret law], accessible, open & fair trials (Raz) Thick/substantive interpretation of rule of law

2 - Looks at content of laws, moral character to law - Substantive - To protect civil & human rights - Geoffrey De Q Walker his definition of rule of law includes substantive content Formalism - External considerations no taken into account - Can lead to unjust outcomes: o o One arm swimmer, one race, disqualified as rules states winner must touch first with both hands formal legalism - the idea that the law can be mechanically applied without references to external factors (such as justice, social factors etc) - can produce results that are intuitively unjust despite being procedurally correct. It therefore indicates that formal legality, procedural justice, formal equality etc are not sufficient in themselves to produce what we might regard as a just legal system. - Commitment to strict legal formalisms denies wider political & social context of adjunction & suppresses judicial creativity (B&B) - Some aspect of formalism is required in the liberal legal system due to central role in the rile of law - Today s judicial system has conflict as desires formalism on one side and flexibility/substantive approach on the other.

3 3. Equality and Law Formal v substantive equality Formal equality seen as simple, objective, mechanical and straightforward treat like cases alike, o central tenant of liberalism o Equality is comparative equal to what? Age, sex, intelligence? Need to compare non-identical things. o Requires relevant criteria to be clearly articulated o Stereotypes about gender/race/culture should not interfere with our assumptions o Treated the same as each other o People should be considered individual (not as by belonging to a particular group e.g. Aboriginal, paraplegics etc) o Aim to provide justice Critiques of formal equality: Single objective standard of comparison reasonable person - Apply assumption that everyone is middle class, white, heterosexual, able-bodied man, Christian People/groups subjected to longstanding inequality will live on under the appearance of equality Substantive equality seen as complex, subjective, politically charged and unreliable o focus is on equality of outcome/ equal result o looks at impact of systemic & institutional disadvantage o examines the assumptions of categories e.g. work experience should a mother returning to work be judged equally against other woman who have not taken time off to rear children e.g. education & training should Aboriginal people be judged for not having secondary education attainment as they find it harder to attend uni? E.g. physical ability are people with disabilities excluded for job because of their disability or lack of experience o Examples in action quotas of certain class of disadvantages people in job affirmative action better housing, financial incentives for finishing school for aboriginal people o Critiques = by having quotas/affirmative action - does this take away from people who have worked harder, merit, and applied themselves by giving a job to someone from a disadvantaged group. E.g. aiming to have 5% of all doctors to be aboriginal would this cause too much social engineering? This affirmative action e.g. ratios/quota system people will argue you are passing over more meritorious candidates to give opportunity to people in disadvantaged groups. Breaches formal equality if you have a system that leans towards allowing more woman/indigenous into a role actually goes against formal equality BUT: People are not equal: Inherent inequalities intelligence, beauty, strength, endurance, empathy, determination, focus, etc Individual choices hard-working, training and education, experience, wisdom, task-focus etc Institutional or social education, poverty, opportunity, self-image, cultural expectations, racist and sexist attitudes etc Discrimination Discrimination can be a described as external display of biased mind direct discrimination = not renting out house to Aboriginal family indirect discrimination = inability for women to fill weight & height requirements that were based on male norms. Under Australian federal law, it is illegal to discriminate on the basis of age, disability, race or sex. (Sex Discrimination Act 1984 however it is not illegal to discriminate rather conciliation preferred),

4 Equality Thornton Differences between people: - to start analysing equality differences between humans must be assessed - Need to identify relevant & irrelevant differences eg. Having green eyes may be a natural difference but may not lead to inequality - there are differences natural differences but not every difference will translate to inequality - inequalities based on equalities are salient and are politically driven in legislation e.g. having HIV does not fit in to any category in antidiscrimination act. Not every difference will trigger a protection. - Equality becomes a puzzling thing especially when you look at what inequalities we choose to protect. - Historical identification of differences what is worthy of protection - Sometimes people wanted to be treated the same & other times they want to be treated differently e.g. if charged with a crime how your particular differences may be used to defend your actions Equality a shibboleth? definition for shibboleth is a symbolic defining concept that has lost its original significance and hence is an empty catch cry. So I guess the simple version of the question is has the concept of equality lost its central meaning and become an empty catchcry. Other terms: Egalitarianism - all human beings are fundamentally equal Communitarianism/Marxism - class issues/ law is a tool of the dominant/bourgeois/ruling classes - more focussed on society as whole, emphasis on classes Capitalism - closely aligned with liberalism - the free market and the focus the freedom of the individual to contract. Public/private dichotomy - law/politics/public male domain - home/household/domestic/private /female domain

5 4. Law & Gender Public/private dichotomy Idea of negative liberty freedom from state intervention especially in the private realm. 1) Public: a) Rationality, objective, state regulation, politics, paid work, MALE (rational, active) 2) Private: a) Morality, subjective, freedom from interference, family, cooperative, home, FEMALE (Irrational, passive) b) Non intervention in a sphere that is not of concern to others.