The Logic of the Rule of Law: Lessons from Willis

In any event the parables sometimes drawn from the Stuart period by some twentieth century judges – 'Her Majesty's Judges' (a nice term), as we call the members of the state dispute-deciding department – to support decisions against the 'Executive' (a nasty term) are to me theology in its purest form.1 Is somebody being actually hurt by some actual defect in the machinery of government and, if so, what is that defect and how can it be remedied: these are the questions I should like to see asked.2 I Introduction The themes of this special issue of the University of Toronto Law Journal are Willisian rather than Willis, general issues that arise out of Willis's contribution to public law rather than his actual arguments. However, on rereading Willis to get a grip on the Willisian, I found Willis himself irresistible. It is not just the magnificence of his prose that attracts me, but the fact that his arguments seem as fresh and as topical today as anything that I've read in the last twenty years. Willis presents with the utmost clarity problems that public lawyers are grappling with today. This rereading, however, has confirmed the view that I have held ever since my first more cursory forays into his work: Willis was unable to deal with the logic of the rule of law. He wanted rule by law, but not the rule of law;3 and he was deeply sceptical about any claims that support judicial review on the ground that judges are the guardians of the 'enduring' or 'fundamental' or 'constitutional' values of the rule of law. In his last major essay on administrative law (1974), he described such claims as theological in nature. The 'currently fashionable cults' that fasten onto them do damage to 'effective government' if they are 'allowed to infiltrate too deeply into the procedural part of administrative law.' He identified the cult of 'the individual,' which leads to prisoners complaining of their treatment or demanding a 'formal "right to be heard"' [End Page 691] when applying for parole; the 'cult of "openness,"' which leads to claims by the press 'to the right to dig into confidential government files'; and the 'cult of "participatory democracy,"' which leads to claims by '"concerned" busybodies to the right to take court proceedings to curb, say, alleged illegal pollution or alleged dereliction of duty by police.'4 Willis thought that the way to avoid being 'global and theological' was to be 'specific and practical,' to focus on reality, which he always claimed was his method. But he did not trust judges to adopt this focus, since they would inevitably be attracted to abstract theological questions about fundamental constitutional values. And their answers to these questions would involve their imposing 'individualist values whose sole claim to validity is that they are lawyer's values based, as lawyer's values always are, on a long-dead eighteenth-century past.'5 Thus Willis argued throughout his career that one should put one's trust in government and civil servants' values.6 The real protection against official arbitrariness was not, in fact, judicial control: the 'real safeguards are question time in the House of Commons, the newspapers, the pressure groups and, most important of all, the good sense and decency of the administrators themselves.'7 What one needed was statute law and a properly trained civil service, and problems that arose in implementing legislation could be raised in Parliament. But what Willis failed to see – or, perhaps more accurately, saw but was unwilling to take properly on board – was that one cannot have rule by law, rule by statute law, without the logic of the rule of law. The more accurate description – that Willis saw but was unable to take on board the fact that rule by law involves the logic of the rule of law – is revealed by...

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