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The Prospects for the Rule of Law

Published online by Cambridge University Press:  07 November 2014

J. A. Corry
J. A. Corry*
Affiliation:
Queens University
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Extract

The events of the last thirty years have reinforced the attachment of the thoughtful to the Rule of Law. After watching the shocking excesses of rulers who had escaped from the restraints of law, we can think of dozens of reasons for maintaining the authority of law, which we could not have articulated thirty years ago. But agreement on the end has not enabled us to agree on the means. What kind of institutional arrangements are needed to meet the requirements of the Rule of Law? Since there are infinite possible gradations between the untrammelled licence of rulers and the Rechtstaat of eighteenth-century England, what minimum framework of restraints on rulers is needed? Supposing we could determine the formal requirements of the minimum, in what kind of a society can they be maintained and guaranteed? To be specific, will the inner nature and the inexorable requirements of the collectivist societies in which we live erode and submerge them?

What is required for the Rule of Law to be effective? On the one hand, some have contended that the phrase is essentially meaningless because it means only that the exercisers of power must show that it was conferred on them by law. Hitler showed a scrupulous regard for legal and constitutional forms as he persuaded the German Reichstag to confer on him practically boundless discretion. He could always point to legal warrant for the substance of his actions. In this sense, we might become subject to the most capricious tyranny without ever abandoning the Rule of Law.

Type
Research Article
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 21 , Issue 4 , November 1955 , pp. 405 - 415
Copyright
Copyright © Canadian Political Science Association 1955

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References

1 Keeton, G. W., The Passing of Parliament (London: Ernest Benn, 1952), 201–2.Google Scholar

2 Tannenbaum, Frank, “The Balance of Power in Society,” Political Science Quarterly, LI, 1946, 481–504.CrossRefGoogle Scholar

3 Keeton, The Passing of Parliament, chap. vi.

4 For a detailed appraisal of the first iour years of the work of the committee, see Wheare, K. C., “Controlling Delegated Legislation,” Journal of Politics, XI, 1949, 748–68.CrossRefGoogle Scholar

5 Rex v. Electricity Commissioners, (1924) 1 K.B. 171; Rex v. Hendon Rural District Council, (1933) 2 K.B. 696.

6 Franklin v. Minister of Town and Country Planning, 1947 A.C. 87; Johnson v. Minister of Health, (1947) All. E.R. 395; Earl Fitzwilliam's Wentworth Estates v. Minister of Town and Country Planning, (1951) 2 K.B. 284.

7 Public Inquiry Ordered by the Minister of Agriculture into the Disposal of Land at Crichel Down, Cmd. 9176 (London: H.M.S.O., 1954).Google Scholar For an account of the whole episode, see Brown, R. Douglas, The Battle of Crichel Down (London: The Bodley Head, 1955).Google Scholar

8 Brown, R. Douglas, The Battle of Crichel Down, at p. 85.Google Scholar

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11 For a sociological analysis bearing directly on these issues, see Riesman, David, The Lonely Crowd (New Haven: Yale University Press, 1950).Google Scholar