Revisiting the Rule of Law book forum - Author’s reply
30.11.2023
It is a real privilege to read and be given the opportunity to reply to this AusPubLaw book symposium on my Cambridge ‘Element’, Revisiting the Rule of Law. That each of Gabrielle Appleby, Megan Davis, Dylan Lino, Alex Reilly, Paul Burgess and Justice Angus Stewart took the time to take my efforts at explication, analysis and intellectual leadership seriously, and then reflect on their own academic and professional endeavours in association with those efforts, is the ultimate compliment to an author whose first priority in writing the work was that it be useful to others.
The little book with which we are here concerned came into being because the editors for the ‘Philosophy of Law’ series within the new Cambridge University Press ‘Elements’ project asked me to write the volume on ‘the rule of law’. My instructions were to provide a succinct and accessible overview of key ideas and debates within scholarship on the rule of law, as well as to suggest ways in which the boundaries of this received territory might be pushed in the direction of new frontiers of inquiry.
Brevity was again the prescription for the thoughts I offer here in reply to each of the contributions to this symposium. I have organised those thoughts around three broad themes that I see as cutting across each of the commentaries: directions of thought, our rule of law inheritance, and maintaining a tradition.
Directions of thought
One of the key messages I sought to convey in Revisiting the Rule of Law is that there is nothing innocent about theorising or engaging theoretically with this central idea of political and legal thought. Every treatment of the rule of law has an agenda to advance or to avert, a problem to solve, or any number of other aims in view. This is certainly the case for the ‘vignettes’ of rule of law theory through which so many of us make our first acquaintance with the idea (at 4), and which Appleby et al rightly point out were each penned by Anglo or European white men thinking and working in a particular time and place, each and all broadly ideologically committed to some or other version of liberal political philosophy.
It matters to point this out because recognising the contexts from which theoretical interventions come also promotes recognition of the often under-acknowledged influence of those contexts in setting our directions of thought about the rule of law. As people of the rule of law ourselves, each of us contributors to this symposium have taken the time to consider the serviceability of our own efforts to work with the idea of the rule of law, in theory as well as in practice, to the legal, political, social, cultural, historical and institutional realities in and with which we live. With such shared aims, this symposium was destined to be a friendly one. That however is a good thing, because the task we have each set ourselves is difficult, and hard work is best shared, and shared well.
Let me start with Justice Stewart’s reflections on the, at most, implicit engagement with private law in Revisiting the Rule of Law. This is an accurate observation: at the outset I clarified that my primary interest lay in how the rule of law 'is thought to frame political rather than interpersonal relationships between ruler and ruled, or government and the governed, rather than those between and among persons generally' (at 6). This decision was in part driven by the limitations of space within which I was working, and in part by an increasing awareness of just how much the political dimensions of the rule of law had been sidelined or concealed in service of an emphasis on its legal dimensions. I agree with Judith Shklar—whose thought I returned to repeatedly in the work—that this relative eclipse of the political by the legal is traceable to the enduring dominance of legal thought in the theoretical elaboration of the idea of the rule of law. Albert Venn Dicey’s late nineteenth century contribution to this intellectual shift—to which I return shortly—is not to be underestimated. This is why my own presentation of the idea of the rule of law in terms of the political demand of mutual subordination to law seeks to ensure that its dual political and legal dimensions are kept in in focus.
Justice Stewart’s reflections on the affinities between private law and the rule of law, and specifically on the work of judges in maintaining the relative stability of private law doctrines and principles, are however important for reasons other than highlighting a different site of analysis to which a study like mine could have turned. The key message of his contribution, as I read it, is that private law can 'fulfil a similar function to the rule of law' by mediating the effect of one person’s private power over another. Analogising Hugh Collins’ recent arguments about the ‘constitutionalisation’ of private law to the work that common law judges do every day to stabilise private law relations through incremental doctrinal development and careful adherence to precedent, I read Justice Stewart’s analysis as fundamentally concerned with how and to what extent law (of whatever kind it might be) mediates the experience of ‘being ruled’. The message I take from his analysis is that private law will fail in the realisation of its implicit liberal values, and in its affinities with the rule of law, if it allows for one private person effectively to rule over another. This is not simply an endorsement of private law’s connections to liberal values. It is a normatively demanding comment on private law’s responsibilities toward relationships between people.
My own interest in the relational dimensions of the rule of law was primary among the reasons behind my decision to encourage a fresh direction of rule of law thought in which the ‘people’ of the rule of law are brought to the fore. This urge to focus on the ‘people’ of the rule of law was an outgrowth of my intellectual instincts generally as both a legal theorist and an administrative lawyer: my first instinct is always to ask how something would be seen, understood, received or experienced by the person ‘on the bottom’. But this urge also flowed readily from my presentation of the rule of law in terms of the political demand of mutual subordination to law. To bring that demand mutual subordination to law into view is simultaneously to bring people into view, because it is people who discharge, benefit from, or are denied that demand.
My ‘peopling’ of rule of law inquiry has proven to be especially generative for Appleby et al in relation to their own preoccupations with the place and practice of the rule of law in the Australian settler state. As they rightly point out, the rule of law is 'a concept that for many First Nations peoples rings hollow in their experience of the settler state'. For good reason: its claimed benefits are not what First Nations peoples have experienced within settler state legal systems, as opposed to their own. The acute and recurrent dissonance that too often arises between First Nations peoples and Australia’s settler state legal systems demands that we be bold enough to ask whether a rule of law conversation can be sustained in this country at all. If it can, I am in full agreement with Appleby et all that 'where we start, and with whose voices, matters'. But this will also require a confrontation with our rule of law inheritance. Which is to say, we need to come to grips with the ghost of A V Dicey.
Our rule of law inheritance
There is not a student of Australian public law who has not been instructed, at some point, to look to Dicey to understand what the rule of law is and means in ‘our’ political and legal tradition. Justice Stewart notices the same pattern in relation to judicial engagement with the idea of the rule of law, which in his experience spans both Australia and South Africa. But if ever it was timely (or overdue) to come to terms with the rule of law story we get from Dicey, it is in the aftermath of Australia’s most recent and anguishing episode of wrestling with the continuing legacies of our English colonial past. I refer, of course, to our referendum on enshrining an Aboriginal and Torres Strait Islander Voice to Parliament in the Australian Constitution.
We are all familiar with the basics of Dicey’s rule of law, which organises itself around the idea that an aggrieved subject of government power must be able to invoke the jurisdiction of the ‘ordinary’ courts applying the ‘ordinary’ law to bring that power to account. This is Dicey’s primary prescription for ensuring the rule of law demand of equality before the law: both officials and subjects are accountable to the same law, in the same way. Students of administrative law will also be familiar with Dicey’s oft-cited concerns about administrative discretion, which at its most extreme is presented a little more than arbitrary power in legal clothing.
Teachers of public law in this country have often spoken to these key features of Dicey’s rule of law as if his prescriptions are uncontroversial inheritances from our common law tradition that require no further explanation or justification. In Revisiting the Rule of Law I sought to promote a much more contextualised approach to understanding Dicey’s rule of law thought. I insisted that we must understand Dicey as a (very English) man of his time whose ‘theory’ of the rule of law was closely informed by the perceived the threat posed by a growing administrative state – and the legislatively-mandated redistributions of private wealth for social and collective causes that it could support – to the institutional arrangements and private law guarantees around which the English constitutional order had been built. This was the historical, ideological and institutional context in which Dicey’s contribution to rule of law thought was born.
Revisiting the Rule of Law was written for a general and international audience, rather than a specifically Australian one. For an Australian audience the ‘Dicey problem’ can be expressed in bolder terms. It is misguided, or even dangerous, uncritically to absorb the commitments and worries informing Dicey’s rule of law into an understanding of what the rule of law is or means in Australia, now. For a start, Australia in its twentieth century federal incarnation was born out of democratic and collective commitments that positioned the parliament as the key engine of lawmaking and institutional development. Moreover and crucially, to return to Appleby et al’s point, Australia is settler state that continues to struggle to come to terms with the relationship between its colonial inheritance and its First Nations peoples and their legal orders.
This is the circumstance of core concern to Appleby et al, each of whom has worked at the coalface of efforts to decolonise Australia’s political and legal systems so as to render the possibility of mutual subordination to law meaningful in this country. The First Nations Voice proposal, had our recent referendum succeeded in enshrining this measure in the Australian Constitution, would have made critically important progress towards that goal. We must grieve its loss before we can turn to other ideas. But what is beyond debate is that when we begin along that next path, 'where we start, and with whose voices' will again be crucial. It will also be time to determine what, if any, place there should be for the ghost of A V Dicey among them.
Maintaining a tradition
Maintaining any tradition requires us to think critically about, and to strike a balance in practice between, continuity and change. Maintaining a tradition of the rule of law specifically requires that we construct institutional and normative architectures capable of responding to the realities with which we actually live.
Working out how best to strike that balance is a matter of central concern to those scholars who have taken on the formidable challenge of figuring out what the advent of automated decision-making and other developments in artificial intelligence means for the theory and practice of the rule of law in present and future conditions. This is squarely Burgess’s territory, and I am delighted that he found value in my book’s ‘revisiting’ invitation, and especially my ‘peopling’ of the rule of law, for his own navigation of the challenges of that territory. Indeed, Burgess’s questions invite reconsideration of a point made earlier in this reply: namely, that 'it is people who discharge, benefit from, or are denied' the rule of law’s political demand of mutual subordination to law. Does this remain the case in an evolving world of automated decision-making?
Burgess agrees that starting from an understanding of the rule of law as always engaging the agency of officials and subjects is helpful to posing and responding to this and other questions raised by automated decision-making. Can a computer be an official so understood? In Australia it appears that the answer is yes: we have, for example, made explicit accommodation in social security legislation for deeming decisions made by computers to be decisions of named (human) repositories of statutory power. But in the rule of law tradition an official is also a subject of law: the political demand of mutual subordination requires no less. And so we might join with Burgess in asking how law can frame and constrain the ‘black box’ of at least some automated decision-making, as well as what kind of thinking about the rule of law is needed to apply to developments of this kind.
My prediction is that early career scholars will be the ones who will break through these tangles to show us their rule of law implications in a new light. In doing so they will also teach us much about the reverse, namely, the implications of automated technologies for how we think about the rule of law itself. Burgess’s contributions will be critical to this endeavour because he understands that it is improbable that everything within inherited rule of law thinking will be up for revisitation. As he puts it astutely, some of the problems that have long preoccupied rule of law thought might get displaced, but they will quickly be replaced with others.
Burgess’s thought experiment around whether the speed at which artificial intelligence can make decisions poses a rule of law problem offers an excellent illustration. What might be the problem here? The answer differs depending on whether one approaches the question from the perspective of the official or the subject. Burgess is surely right to identify that the key focus here needs to be on the subject, to which I would add that the focus needs specifically to be on the relation between the (artificial) official and the subject. If speed of automated decision-making is accompanied by a practice of frequent changes to the decision landscape, the impact on this relation will be of considerable concern in rule of law terms. That concern would arguably be amplified if the example was rule-making rather than decision-making, as the former presumably would apply generally to a population rather than to a specific individual. But even if speedy decision-making were not accompanied by a practice of frequent changes to the decision landscape, an enduring demand associated with the rule of law would still arise, namely, ensuring that the subject of that speedily made decision knows about what is going on. Which is simply to say, some of the implications for the rule of law that arise from automated decision-making may be new, while others will be familiar. The key will be to identify when the baby should be thrown out with the bathwater, and when it should stay put.
Brevity has not necessarily been achieved in these responses to the three excellent contributions to this symposium on my Revisiting the Rule of Law. I am grateful to the AusPubLaw editors for indulging me the space to engage with those contributions in a way, I hope, that adds something further to the conversations initiated by each. I’m indebted to all those involved for the opportunity to reply, and above all for the compliment of singling out the reflections and provocations of my book as a generative resource for the same from others. My sincere thanks to all.
Kristen Rundle is Professor of Law at Melbourne Law School, where she teaches and researches in the areas of administrative law and legal theory, and was the Co-Director of the Centre for Comparative Constitutional Studies from 2017-2020.
Suggested citation: Kristen Rundle, ‘Revisiting the Rule of Law book forum - Author’s reply’ (30 November 2023) <https://www.auspublaw.org/blog/2023/11/revisiting-the-rule-of-law-book-forum-authors-reply>