EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) in co-operation with the Foreign and Commonwealth Office of the United Kingdom and the Bingham Centre for the Rule of Law under the auspices of the United Kingdom Chairmanship of the Committee of Ministers of the Council of Europe CONFERENCE ON “THE RULE OF LAW AS A PRACTICAL CONCEPT” Lancaster House, London Friday 2 March 2012 (9h00 to 17h30) REPORTS 3 TABLE OF CONTENTS KEYNOTE SPEECH ...................................................................................................................... 5 Mr Ronald DWORKIN ................................................................................................................... 5 THE COMMON CORE OF THE RULE OF LAW AND THE RECHTSSTAAT .................... 13 Mr Kaarlo TUORI ......................................................................................................................... 13 THE RULE OF LAW IN ACTION .............................................................................................. 17 Mr Serhiy HOLOVATY ............................................................................................................... 17 LAW-MAKING PRINCIPLES UNDER THE RULE OF LAW ................................................ 57 Mr Sergio BARTOLE ................................................................................................................... 57 INTERACTION BETWEEN GOVERNMENT AND PARLIAMENT IN THE LEGISLATIVE PROCESS ...................................................................................................................................... 65 Mr Jean-Claude COLLIARD ........................................................................................................ 65 THE CONTROL OF EXECUTIVE DISCRETION IN IMPLEMENTING LAWS IN ORDER TO PREVENT ARBITRARINESS - CROATIAN MODEL OF JUDICIAL REVIEW OVER SUBORDINATE LEGISLATION ............................................................................................... 71 Ms Slavica BANIĆ ........................................................................................................................ 71 RULE OF LAW – EXECUTIVE DISCRETION IN THE FIELD OF FREEDOM OF ASSEMBLY .................................................................................................................................. 79 Ms Finola FLANAGAN ............................................................................................................... 79 CONCLUDING REMARKS FOLLOWING THE GENERAL DISCUSSION ........................ 87 Mr Jan E. HELGESEN .................................................................................................................. 87 PROGRAMME ............................................................................................................................. 91 The opinions expressed in these reports are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe. These reports have not been revised linguistically. These reports were presented at the Conference on “The Rule of Law as a practical concept” organised at Lancaster House, London (U.K.), on 2 March 2012 by the European Commission for Democracy through Law (Venice Commission) in co-operation with the Foreign and Commonwealth Office of the United Kingdom and the Bingham Centre for the Rule of Law under the auspices of the United Kingdom Chairmanship of the Committee of Ministers of the Council of Europe. 5 KEYNOTE SPEECH Mr Ronald DWORKIN Frank Henry Sommer Professor of Law at New York University, Professor Emeritus of Jurisprudence at University College London The Rule of Law There is a paradox at the heart of the rule of law. That ideal demands certainty and condemns ambiguity in the law. But that is great uncertainty and alleged ambiguity in the ideal itself. Firm adherents are locked in great disagreement about what the rule of law really is. These disagreements are well summarized in the working paper of the Venice Commission that is before us. They are also well articulated in Lord Bingham’s book. The natural reaction to the paradox might be just to junk the very idea of the rule of law as unclear and unhelpful. If we want to say that secret laws or trials are wrong or that prisoners should not be tortured or that parliaments should be subject to written constitutions, we should say just that and give up worrying about what the rule of law exactly means. Indeed, whenever people seriously disagree about a political value – when they disagree about what, exactly, democracy or liberty or equality means – we find that kind of reaction: abandon the concept. But this is almost always a mistake. Political values are political commitments. Governments and peoples agree that there is an important value named by democracy or liberty or the rule of law, though they disagree, perhaps profoundly, about exactly how that value should be identified. It is important properly to locate that disagreement and to confront it. Otherwise we lose the opportunity to argue that secret trials and parliamentary supremacy are wrong because they violate the rule of law, and then to argue that the best explanation of why they do violate it shows that parliamentary supremacy is also wrong. I will argue, this morning, that disagreements about the character of the rule of law reflect even deeper disagreements about a fundamental moral concept – the concept of personal dignity – and therefore about political legitimacy as well. I’ll start with some comments about some of the important disagreements. But first I should emphasize two points about what seems uncontroversial. The first is that there is a great deal uncontroversial about what the rule of law means. Lon Fuller, in his influential book called The Internal Morality of Law, provided a list of what the rule of law clearly forbids: not just secret laws and secret trials but also laws that cannot be obeyed and fake trials, for example. The second is that rule of law is not an all-or-nothing affair; so that nations that fail to obey its mandates in one respect are to be treated as tyrannies. The Rule of Law is aspirational and is therefore a matter of degree. My country, the U.S. fails to respect the Rule of Law when it holds detainees in Guantanamo without charge or trial for years and also, in my view, when it failed to ratify the Treaty of Rome accepting the jurisdiction of the International Criminal Court. But in other respects, including the rules of criminal procedure, the United States hews closer to what the rule of law ideally demands that many European nations 6 do. We must ask not whether a nation accepts or denies the rule of law but when and how far it falls short of the rule of law. Now to the controversies. 1. Is the rule of law a formal or substantive? One view has been held by Professor Joseph Raz: “A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies … It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law … The law may … institute slavery without violating the rule of law.” Lord Bingham sharply disagreed. “I would roundly reject [Raz’s view] in favour of a ‘thick’ definition, embracing the protection of human rights within its scope. A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.” Bingham, Tom (2011-07-07). Now of course both Raz and Bingham condemn the tyranny that Raz describes. But if Raz’s position makes sense he must think that in some respect or to some degree his tyranny is better than it would be if it did not legislate openly and execute its laws faithfully. An analysis of the rule of law is not an exercise in reporting ordinary language. It would make no sense if it were, because ordinary speakers would give different definitions. We must accept, even though we disagree about its content, that the rule of law is a value. We must therefore define it in such a way as to reveal what it is that is good about it. That is why Raz and Bingham disagree: Raz thinks there is something better, even though not much, about a tyranny that follows its rules, and Bingham thinks there is nothing better just in carefully following duly enacted rules. 2. Is parliamentary supremacy consistent with the rule of law? Or does legality require limits on what a democratically elected parliament can adopt? Does it require that some judges have the power to overrule at least extreme parliamentary decisions? Now I do not mean to ask whether parliament really does have the legal authority to do anything it wants in a nation that does not impose explicit limits on its power. There is an important debate among legal theorists in the UK whether the British parliament really is supreme in that way. Bingham thought that it is, but his former colleague Lord Steyn and Jeffrey Jowell, among many others, disagree. They think that parliament does not have the legal power to curtail the court’s jurisdiction to protect suspected terrorists, for instance.