Content warning: This article contains references to sexual violence.
Last week, during a press conference in Perth, the Australian Attorney-General refused to stand down in the face of a serious allegation of sexual assault. To support his right to continue to serve as Australia’s first law officer, the Attorney-General said: ‘My guess is that if I were to resign and that set a new standard, there wouldn't be much need for an Attorney-General anyway, because there would be no rule of law left to protect in this country.’
In response to this bold claim, there have been a raft of articles defending both the concept and resilience of the rule of law in Australia, including its capacity to withstand an independent inquiry into allegations of sexual assault against the Attorney-General. I am not planning to add further to that particular conversation. Instead, I want to dig a little further and consider the quality of this rule of law that we are all so keen to protect.
The rule of law is an elusive concept that we legal academics teach to law students as a fundamental principle of our system of law and government. At its core, it means that a country should be governed by a system of laws rather than the whims of an authoritarian government (or monarch). What this means in practice isn’t always clear, but most theorists agree that it means that government can only act when authorised by law; that the law applies equally to everyone (even to those in power); that the law is transparent and certain (meaning, for example, that retrospective laws are generally not okay); and the separation of powers is respected.
This shallow, or formal, concept of the rule of law is obviously preferable to an unaccountable authoritarian government that wields power arbitrarily against its population. But it still only gets us so far. A more substantive approach to the rule of law makes further demands in relation to both the quality of law and the process by which it is developed.
This substantive approach requires that we go beyond universal access to justice in order to provide just outcomes — including the social, economic and cultural conditions conducive to human dignity. It also demands that everyone is able to participate in the process of developing the law — that the legitimacy of both the government and law is grounded in the consent of the governed.
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