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Published online by Cambridge University Press: 20 July 2015
What the rule of law means and how it constrains the exercise of state power raise issues which have been debated-without resolution-over the ages. Times of emergency bring fresh energy to the discussion, and David Dyzenhaus is one of many who have entered the fray to debate the balance between liberty and national security in the post 9/11 period. It has not been easy for those who place their trust in written constitutions to account for the way textual guarantees are diluted when the state is under threat. Rather than address that dilemma, Dyzenhaus sets his ideas apart by proposing a theory which maximizes the protection of rights in emergency circumstances, without straining the institutional capacities or legitimacy of the judiciary. This theory invokes the pedigree of the common law-and “common law constitutionalism”-and is grounded in the constitutive properties of the rule of law, or principle of legality. Dyzenhaus may not have answered the questions readers will want to ask, but he has opened up the middle ground between the competing supremacies yet more, by drawing common law constitutionalism and its rule-of-law pedigree into constitutional theories of review. More to the point, he has challenged the judiciary to draw on the moral resources of the law to make executive and legislative action as accountable as possible at all times, in emergencies as well as in normal times. Readers can and should engage, at many levels, with the complexity of his thought in this important book.
1. Rule by law means “the use of law as a brute instrument to achieve the ends of those with political power” while the rule of law means “the constraints which normative conceptions” place on “the instrumental use of law” (ibid. at 6).
2. See ibid. at 2; see also at 53 (discussing the problem of “seepage of rule of lawlessness into the ordinary legal order”).
3. See ibid. at 13, 14, and 15.
4. See ibid. at 39 (describing a black hole as a “juridically produced void,” a “space beyond law, a space which is revealed when law recedes leaving the legally unconstrained state, represented by the sovereign, to act”).
5. See ibid. at 42 (stating that “a grey hole is a legal space in which there are some legal constraints on executive action—it is not a lawless void—but the constraints are so insubstantial that they pretty well permit government to do as it pleases”).
6. See ibid. (stating that, because “such grey holes permit government to have its cake and eat it too, to seem to be governing not only by law but in accordance with the rule of law, they and their endorsement by judges and academics might be even more dangerous from the perspective of the substantive conception of the rule of law than true black holes”). See also at 50 (stating that “grey holes cause more harm to the rule of law than black holes” because a grey hole “is in substance a legal black hole but worse because the procedural rights available to a detainee cloak the lack of substance”; thus “[a] little bit of legality can be more lethal to the rule of law than none.”)
7. Dyzenhaus’s position is that “[s]tates of emergency can be governed by the rule of law” (ibid. at 53). And so he states that “courts must ask what the legal limits are on the power of Parliament, whatever the nature of the emergency” (ibid. at 79).
8. See ibid. at 212 (not conceding that “the question whether judges are entitled to uphold fundamental principles of legality depends on whether there is a written constitution which permits them to do so,” and adding that, in all legal orders, “judges are under a duty to uphold constitutional principles, including the principles of the unwritten constitution”).
9. See ibid. at 26 and 149 (describing judicial lip service as “an attempt by a judge to shore up his sense of role in the face of the reality of necessarily untrammeled executive action”).
10. See ibid. at 2 (explaining the concept’s genesis in ch. 13 of Leviathan and giving a nod to Bob Dylan’s ‘Subterranean Homesick Blues’).
11. “[A] concession that a statute is a valid one is not necessarily a concession that it has legal authority” (ibid. at 206).
12. See ibid. at 79.
13. In fact, he states that “[t]he rule-of-law project does not require allegiance to a rigid doctrine of the separation of powers in which judges are the exclusive guardians of the rule of law” (ibid. at 201).
14. These “sticks” might include independent judges, a legislature committed to enacting “general, public, clear and prospective statutes,” and “a staff of public servants who are regarded as exercising delegated and hence limited authority” (ibid. at 230).
15. Marbury v. Madison, 1 Cranch 137, 175 (1803).Google Scholar
16. See Hogg, Peter W & Bushell, Allison A., “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter Isn’t Such a Bad Thing After All” (1997) 35 Osgoode Hall L.J. 75 Google Scholar and Charter Dialogue: Ten Years Later (2007) 45 Osgoode Hall L.J. (special issue).
17. See e.g., Roach, K., The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto, ON: Irwin Law Inc., 2001)Google Scholar and Tushnet, M., “Weak-Form Judicial Review: Its Implications for Legislatures” in Huscroft, G. & Brodie, I., eds., Constitutionalism in the Charter Era 213 (Toronto, ON: LexisNexis Canada Inc., 2004).Google Scholar
18. See sections 1 (reasonable limits) and 33 (notwithstanding clause) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c.11.
19. 1990/109.
20. Human Rights Act 1998 (U.K.) 1998, c.42.
21. See generally Gardbaum, S., “The New Commonwealth Model of Constitutionalism” (2001) 49 Am. J. Comp. L. 707.CrossRefGoogle Scholar
22. He states only that “[m]y conception of the rule of law is substantive: the rule of law is a rule of fundamental constitutional principles which protect individuals from arbitrary action from the state” (The Constitution of Law, supra note * at 2).
23. Yet he does acknowledge the dangers that lurk in any aspirational account of the rule of law, “especially one that asserts that there are unwritten constitutional values which the legislature must respect” (ibid. at 91).