Rule of Beliefs: Constitutional Conventions and the Rule of Law

The concept of the rule of law and not individuals has been the subject of much debate as to what it is, which states have it (or how strongly they have it) and how to encourage its development in those states that don’t have it. One emphasis has been upon what Krygier describes as “anatomical” or “morphological” accounts. These focus on institutional or formal elements of existing rule of law states (such as the separation of legislative, judicial and executive powers) and seek to formulate a rule of law field kit (or “bric-a-brac” as Krygier puts it) deployable in any country sorely in need of the rule of law. There are number of criticisms to be made against these approaches which need not be repeated here. There is one fatal deficiency in institutional accounts which goes to their failure to engage with the logical fiction that underlies the expression “rule of law”; law is a creature of people, is interpreted by people and is enforced by people. No matter what formal institutions one implements, be they written constitutions, separation of powers, a paramount democratic legislature or requirements as to the non-retroactivity, non-secrecy, and generality of individual laws, there must be a human or group of humans exercising legal and practical control over the enforcement and maintenance of those institutions. The best that formal prescriptions of the rule of law can achieve in a nightmare scenario (where the ultimate power holder chooses overtly to ignore the law or to act in an oppressive or grossly arbitrary manner) is an institutional deadlock between the ultimate legislative, executive and adjudicative institutions which of itself provides no answer to the question of why in “strong” rule of law states the nightmare scenario does not arise and is not expected to arise beyond mere good luck over the centuries. Sitting atop and among the institutions of a strong rule of law state, there must exist a web of beliefs, which beliefs are held in various forms by the various actors and power holders within the state so as to give the “law” in the rule of law its normative force and efficacy. This essay considers one aspect of the question “who has to believe what for the rule of law to be effective?” It is part of a much bigger inquiry involving important sociological questions about the notion of “the public” and how it (or each of its various constituents) might react in different situations in different societies (and, in particular, how it might react in strong rule of law states as against those states where the rule of law is entirely absent). That broader sociological inquiry is beyond the scope of this essay, which is concerned with the narrower theoretical question of the need for something more than certain formal characteristics of the law and institutions in a rule of law society and which examines briefly one aspect of that “something more” – namely, constitutional conventions. These conventions, despite their apparent lack of legal force, are an essential ingredient of such constitutional systems as those of Australia, England and Canada and yet they do not appear in formalist accounts (arguably they can be forced into Fuller’s requirement that the laws be administered in ways that conform to their terms, but this is an awkward fit).

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