One of the Law Society’s statutory roles, and a key strategic priority, is to advocate for and promote the rule of law.
In its simplest expression, the rule of law is the principle that the law applies equally to everyone – both the government and its citizens. It is the basic idea that governors, officials and citizens alike should comply with the law, and that ministers, officials and public bodies must follow law when executing their functions.1 This is reflected in a series of interrelated principles, which aim to ensure the fair and equal treatment of all.
This resource sets out what the rule of law means in Aotearoa New Zealand, and the Law Society’s work to uphold and promote this fundamental constitutional principle.
Over the decades, many scholars have attempted to define this constitutional principle.
The Rt. Hon Lord Bingham of Cornhill KG commented on “the extreme difficulty of formulating a succinct and accurate definition suitable for inclusion in a statute”.2
The 19th century jurist AV Dicey considered the doctrine of the rule of law to mean:3
Drawing on this definition, Lord Bingham observed:4
“The core of the existing principle is … 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 in the courts.”
In addition, Lord Bingham believed the rule of law embodied the following ‘sub-rules’:5
The United Nations has adopted a meaning which largely aligns with this. It defines the rule of law as:
a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.6
The doctrine of the rule of law applies in Aotearoa New Zealand as it does in England, in Europe and throughout the common law world.7 In Aotearoa New Zealand, the Legislation Design and Advisory Committee (LDAC) considers the following principles to be at the heart of the doctrine of the rule of law:8
The rule of law is not an abstract concept. It can be seen in many of our legal and constitutional arrangements, and in mechanisms designed to ensure the fair and just application of the law. For example:
The Lawyers and Conveyancers Act 2006, and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, impose a fundamental obligation on all lawyers in Aotearoa New Zealand to uphold the rule of law.9 This requires lawyers to comply with the law, and to hold themselves, and their clients, accountable to the law. Importantly, it requires lawyers to act in a manner that is consistent with the core principles of the rule of law, and to highlight incidents or behaviours which undermine the rule of law.
Separately to the obligations of individual lawyers, the Law Society has a statutory obligation under the LCA to “assist and promote, for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand, the reform of the law”.10
The Law Society does this in several ways:
The rule of law is relevant to the work that each of our specialist law reform committees undertakes, but is a specific and primary focus of the Public Law Committee.
Useful references for those who wish to read more about the rule of law include:
1 This is sometimes called a ‘thin conception’ of the rule of law. See: Matthew SR Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (1st ed, Bloomsbury Publishing, 2022) at 138.
2 Lord Bingham “The Rule of Law” (2007) 66 CLJ 67.
3 AV Dicey Introduction to the Study of the Law of the Constitution (10th ed, Macmillan & Co, London,
1959), referenced in A to Z of NZ Law - Constitutional Law at 17.8.5.
4 Lord Bingham “The Rule of Law” (2007) 66 CLJ 67.
5 Lord Bingham “The Rule of Law” (2007) 66 CLJ 67.
7 R v Liddell, HC Rotorua CRI-2005-070-5963 at .
8 Legislation Design and Advisory Committee Legislation Guidelines (2021), at 4.1.
9 Section 4(a) of the Act, and rule 2 of the Rules of Conduct and Client Care.
10 Section 65(e).