The Rule of Law: Milestones in Legal History

While there are countless current events that call for comment on the rule of law, this article is about history. Understanding the past helps us understand and make sense of the world today. Hopefully this article will spark an interest among legal professionals to consider the rule of law, how it developed, and why it is so important that we continue to protect and promote it in the years ahead.

What is the Rule of Law?

I thought it prudent to first address the question many of us are too embarrassed to ask: What does the “rule of law” even mean? If you find yourself asking this question, you are in very good company. In 2006, the late Lord Tom Bingham, Lord Chief Justice and Senior Law Lord of the United Kingdom, gave a lecture on the rule of law at Cambridge. He chose this topic because, in his words, “…the expression was constantly on people’s lips, I was not quite sure what it meant, and I was not sure that all those who used the expression knew what they meant either…”¹ Lord Bingham later concluded that, at its core, the rule of law can be summed up as follows:

…that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered by the courts.

With this succinct, albeit incomprehensive, statement in mind, this article highlights a few pivotal moments in the history of the rule of law.

Rule of Law: Key Moments in History

The Magna Carta, 1215

In June 1215, King John, confronted by his barons, agreed to the Magna Carta at Runnymede. The Magna Carta was intended to guarantee certain rights we now recognize as being fundamental to the rule of law, such as the right to be free from illegal imprisonment. However, the Magna Carta was annulled within a matter of months by the Pope on the basis that it was agreed to by King John under duress. Much “bad history” has been made of the great charter. However, it is important in that it represented the will of the people and growing belief that the King should not only make the rules, but also abide by them.

The Magna Carta did not stick, but the idea of it did. Lord Bingham observed that perhaps the significance of the Magna Carta lay not only in what it actually said, but in what later generations claimed and believed it said. The myth of the Magna Carta is significant and still serves (for good and for bad) as a rallying point against oppression. 

The Bill of Rights, 1689, and the Act of Settlement, 1701

Nearly 400 years after the Magna Carta, the people were again dissatisfied with their monarch. In 1688, King James II was expelled as ruler. Following his expulsion, the throne was offered to his daughter, Mary II, and her husband, William III—under conditions that reflected many of the ideas of the Magna Carta. This negotiated succession led to the enactment of the Bill of Rights, 1689, which established rules to which the Crown was subject. Among other things, monarchs could no longer rely on “divine authority” to override the law of the land, and the authority and independence of Parliament was proclaimed. The Bill of Rights also protected individual rights by prohibiting the imposition of excessive fines and bail, and the infliction of cruel and unusual punishments—protections now enshrined in Canada’s Charter of Rights and Freedoms. The Bill of Rights was not a complete success—compromises were made. Among them were attempts to improve the independence of the judiciary.

William III and Mary II had no children, prompting Parliament to pass the Act of Settlement, 1701, to ensure a Protestant line of succession. However, Parliament also used it as an opportunity to enact laws promoting an independent judiciary, recognizing that there is little use in enacting laws, including a Bill of Rights, if judges are unable or unwilling to enforce them from fear they could be removed from office at the sovereign’s pleasure. To this day, the Act of Settlement is recognized as the foundation of modern judicial independence. Among other things, it ensured that judges had security of tenure and could only be removed from office by Parliament. Today, we recognize that an independent judiciary is one which can perform its duties free from influence or interference from government. Judicial independence is still protected by security of tenure, financial security, and administrative independence—protections that date back to the Act of Settlement. 

The Constitution Act, 1982 and the Charter of Rights and Freedoms

The rule of law lies “at the root of our system of government” (Reference re: Secession of Quebec, 1998 CanLII 793 at para. 70). However, it was not expressly mentioned in our constitution until the Constitution Act, 1982. The Charter of Rights and Freedoms begins with the statement that Canada “is founded upon principles that recognize… the rule of law”. By virtue of this statement, the rule of law was expressly “recognized as a cornerstone of our democratic form of government”: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 at 250).

The relevance of the Charter of Rights and Freedoms to the rule of law is obvious. It guarantees basic fundamental freedoms, as well as democratic and legal rights, such as the right to life, liberty, and security of person, and the right not to be arbitrarily detained or imprisoned. Sound familiar? The Charter achieved what the Magna Carta and the Bill of Rights, 1689 aspired to do—ensuring these fundamental rights and freedoms remain paramount. However, in my view, the Charter not only had substantive significance, but also made these rights and freedoms accessible and intelligible to the public.

The Plain Language Movement

The rule of law requires the law be accessible and, so far as possible, intelligible, clear, and predictable. Legal rights are meaningless if they cannot be understood. For this reason, the plain language movement is a modern and significant development in promoting the rule of law.

Plain language is the practice of drafting documents using clear, concise language to ensure that the intended audience can easily understand them. As lawyers, this is critical. For example, when drafting a legal opinion, agreement, or court order for a layperson, it is critical to use language that can be easily understood. People must be able to understand their rights and obligations in order to enforce or comply with them.

Plain language has also increasingly been adopted by courts and administrative tribunals over the last several decades. In 2013, the National Self-Represented Litigants Project conducted a study in Alberta, British Columbia, and Ontario. The researchers found that across all three provinces, self-represented litigants found language used in court forms confusing, complex, and in some cases incomprehensible—a significant hurdle for access to justice. Since then, amendments have been made to adopt plain language in court forms. Similarly, in 2019, the Social Security Tribunal of Canada reviewed all its written materials to promote plain language and began training its members to write decisions in plain language as well.

Plain language makes the law more accessible, intelligible, clear, and predictable, thus promoting the rule of law. Each day, lawyers can promote and protect the rule of law—and make a significant difference for their clients—simply by assessing their clients’ needs and abilities and communicating effectively.

Conclusion

The rule of law is a fundamental principle of democracy, and we as lawyers have a duty to protect it. To do this, we must understand what the rule of law means, and it helps to understand how we got here. While the justice system in which we work is far from perfect, I am grateful to live in a country that complies, or at least seeks to comply, with the rule of law. As noted by Lord Bingham:

The hallmarks of a regime which flouts the rule of law are, alas, all too familiar: the midnight knock on the door, the sudden disappearance, the show trial… the confession extracted by torture… The list is endless. Better to put up with some choleric judges and greedy lawyers.

1 Rt. Hon Lord Bingham, The Rule of Law (London, UK: Penguin Books, 210 at vii).