Revisiting the People of the Rule of Law in Australian Public Law - Revisiting the Rule of Law book forum
Gabrielle Appleby, Megan Davis, Dylan Lino and Alexander Reilly
30.11.2023
Kristen Rundle’s multiple achievements in Revisiting the Rule of Law are belied by its slim volume (although its lucid concision is one of those achievements). A book on the rule of law by one of the world’s leading analytical legal philosophers, it provides a cut-through typography of different ‘accounts’ of the ambiguous and contested ‘rule of law’; explores the different articulations of its driving purpose and its connections with other foundational public law principles such as constitutionalism, liberty, legitimacy, and accountability; and considers the arguments and contestations that exist amongst those scholarly and practice-based disciples – and critics – of the rule of law.
In our view, the most important achievements of Rundle’s book lie in her contextualising and peopling of the rule of law. This is done through a number of what she terms ‘provocations’, and by situating these provocations within the rule of law as a ‘working idea’, given meaning through discourse and practice (at 3).
Meeting – and uncovering – the people behind the idea
One of the most important groups of ‘people’ of the rule of law (although slightly different from the ‘people’ that Rundle introduces later in her book, which we return to below) is the group of people who have conceptualised and elaborated the idea. As the work of Susan Bartie reminds us, it is individual thinkers and scholars who provide the foundations for and shape of legal disciplines, and the assumptions that then sit within them.
In Revisiting the Rule of Law, Rundle starts with a number of canonical statements about and accounts of the rule of law, which operate as building blocks for her subsequent investigation of the concept, its use, and its critique. We see statements from John Locke, Albert Venn Dicey, Friedrich Hayek, Joseph Raz, Jeremy Waldron, Lon Fuller, and Tom Bingham (at 4 and 12-13).
Yet, as Rundle points out, all statements of the rule of law are of a time and place, and reflective of the political orientation and agendas of the people who make them. The aim of her book is
to promote awareness of the historical, political, institutional, and cultural contexts within which all theoretical writings on the rule of law are situated, and which explain much about why particular treatments of the idea take the shape and carry the content that they do (Rundle at 2).
How can we contextualise the canonical rule of law thinkers that Rundle begins with and orients her discussion around? Although the lives and works of these thinkers range across centuries, there are commonalities among them. Notably, they are all men working within European and especially Anglophone intellectual traditions. They all have political commitments to the ideologically broad church of liberalism. Of course, they are all also speaking from particular moments in time and place, from their own distinctive personal circumstances.
It is to Rundle’s great credit that she picks up many of these matters of context throughout the book and critically reflects on their relevance for our understanding of the rule of law. Thus, Rundle (16–17, 39, 51, 61–2) puts Dicey in his historical place as a classical liberal whose account of the rule of law is inextricably caught up with his commitment to laissez-faire government, his ‘Anglo-Saxon parochialism’ (as Shklar famously put it: Shklar (1987) 5) and his defence of the British Empire as a vehicle for human progress. Rundle highlights Hayek’s status as a founding figure of neoliberalism, using the rule of law to justify his attacks on the mid-century welfare state and his exaltation of the market ‘as the central organising mechanism of social and political order’ (Rundle at 19). Rundle contrasts (43–45) the rule of law’s liberal theoretical bias against the thoughts of social-democratic and Marxist thinkers, whose positions have ranged from outright opposition to the rule of law as capitalist ideology, to celebration of it as ‘an unqualified human good’ (Thompson 1977, 267). And at the end of her book, Rundle reflects on the limitations of a rule of law tradition that fails to seriously engage with non-Western (especially Indigenous) traditions of law and lawfulness – a point we revisit below.
Who receives the benefits of the rule of law? From the individual to the collective
Let us return then to Rundle’s provocations, and in particular the importance of focussing on the people of the rule of law: the often ‘disembodied figures through and upon whom the work of the rule of law is thought to be done’ (at 2). Rundle’s people are the subjects and the officials of the rule of law, and her analysis charts their relationships. Through this, Rundle provides a more revealing account of what it means to talk about mutual subordination to the law – that both the rulers and the ruled, the government and the governed, submit to the demands of the law (at 61 and 5).
The subjects of Rundle’s rule of law remain largely abstract and individualised: they are primarily conceived as individual legal persons capable of possessing rights and having the capacity to follow rules, as well as making law-based demands on the rule of law’s officials (at 57). But as Rundle’s discussion of slavery intimates, the rule of law also raises questions about the broader social contexts in which such individuals exist: in particular, their membership of groups and collectives, and how that status affects their relationship to the state and their ability to make claims under the rule of law. The law can make different demands of people depending on which group or collective they are part of; these demands can appear on their face (such as restrictions on the right to vote that exclude groups such as the young or mentally incapacitated) or in their practical impact (such as requirements of voter ID laws more acutely affecting the poor, homeless and Indigenous peoples). The equality of protections granted by law – as well as the equality of responses to demands against the state – will therefore be affected by an appreciation not only of the individual subject, but the group and collective.
Importantly, Rundle also entreats us to consider ‘why it has persistently been the case that certain people are missing within—or missing out from—rule of law thought and practice alike’ (at 53). Again, individuals as well as groups are missing from theoretical accounts of the rule of law as it has been developed by particular people, with particular agendas, in particular historical contexts.
In the Coda of the book, Rundle offers a final, related, provocation from Indigenous thought that questions the assumption that the rule of law can be a universal normative tool through which to assess legal systems. As Rundle explains, the concept of the ‘rule of law’, as currently theorised and debated, is inadequate to capture the collective as well as the land-based dimensions of many Indigenous systems of law and governance (see, eg, the recent exploration of these systems by Marcia Langton and Aaron Corn). It is also a concept that for many First Nations peoples rings hollow in their experience of the settler state (explored, for example, in the Australian context by Hannah McGlade and Eddie Cubillo).
The rule of law was openly weaponised against First Nations during the dispossession and violence of colonisation. Imperial authorities and settlers relied on ideologies associated with the rule of law – especially its status as standard of ‘civilisation’ – to justify and legitimate the British colonisation of Australia. At the same time, British and settler authorities routinely suspended the application of the rule of law to First Nations peoples – through acts of often-lethal violence and discrimination – often on the basis that First Nations peoples failed to meet the Western rule of law yardstick (see further Desmond Manderson in the context of the Black War of Van Diemen’s Land). And even when the institutions and agents of the settler state have upheld the rule of law for Aboriginal and Torres Strait Islander peoples, that has typically meant the displacement of their own ancient systems of law and government. For First Nations peoples historically and for many still today, the (settler) rule of law means alien rule.
Reconciling the history of the rule of law with its redeeming potential
In the context of these critiques and provocations to the rule of law, Rundle asks the extent to which the idea ‘might productively be reconciled with the positive work of public law in the context of a well-functioning administrative state’. Can you still work ‘with the idea, rather than against it, to investigate how it might support more participatory and inclusive political agendas’ (at 45)?
In her work, Megan Davis has also reflected on this dilemma. In an open call for lawyers to shoulder greater responsibility in the upcoming Voice referendum, she reflects on the advice of her mentor Emeritus Professor Garth Nettheim, that ‘the law can oppress and the law can redeem’. This, Davis explains, is what the Voice referendum offers Australia: a repairing of the Australian legal order so that a group previously excluded from the political system and the protections of the rule of law can have a permanent place and voice. This goes to the heart of what Rundle’s rule of law is about: giving a collective group an avenue through which they can make demands on the state that they have previously been excluded from, so that the idea of mutual subordination can be actually realised in practice.
The rule of law: where to start and with whose voices?
If one accepts Rundle’s argument, as we do, that contextualising the rule of law is important, and that ‘any given engagement with the rule of law will be shaped by particular starting points, particular aims, particular methods, and have particular obstacles with which to wrestle, as well as particular conclusions to offer’ (at 1), a question arises: how do we as scholars and teachers tell the story of rule of law and situate it within Australian public law? Where do we start, and with whom?
Rundle’s provocation from Indigenous thought lies at the end of the work: a Coda. It reflects a well-accepted view regarding the ‘story’ of the rule of law that the concept is built (by European, especially English-speaking men of a liberal orientation) and then critiqued (by those such as women, socialists and First Nations people). Of course, if one tells the story of the rule of law according to a linear narrative – reciting the scholarly development of the concept – one inevitably starts with Locke, Dicey, Hayek … In Australian public law one might start with Dicey and move to Dixon.
But far from simply a linear narrative that is shorn of political and social dimensions and choices, this account is itself a choice that privileges those voices and debates over the voices – individual and collective – that were often intentionally excluded from the conversations at the time (as explained, for instance, by Anna Clark in her book on Making Australian History). The development of ‘the rule of law’ as a juristic concept is dominated by Western men invoking it for liberal (and increasingly neoliberal) goals. This must be acknowledged, and Rundle’s work does this exceptionally well.
But rather than reasserting the priority of such thinkers claims to the rule of law, perhaps Rundle’s provocations can start a more radical reorientation. Rundle has reminded us that if we want to see the redemptive value of the rule of law, where we start, and with whose voices, matters..
Gabrielle Appleby is a Professor at UNSW and an editor of the Australian Public Law Blog. Megan Davis is Pro Vice-Chancellor Indigenous and the Balnaves Professor of Constitutional Law at UNSW. Dylan Lino is a Senior Lecturer at the University of Queensland. Alexander Reilly is an Adjunct Professor at the University of Adelaide. Gabrielle, Megan, Dylan and Alexander are the authors of Australian Public Law (4th edition, Oxford University Press, 2023).
Suggested citation: Gabrielle Appleby, Megan Davis, Dylan Lino and Alexander Reilly, ‘Revisiting the People of the Rule of Law in Australian Public Law - Revisiting the Rule of Law book forum’ (30 November 2023) <https://www.auspublaw.org/blog/2023/11/revisiting-the-people-of-the-rule-of-law-in-australian-public-law-revisiting-the-rule-of-law-book-forum>