The Rule of Law

The rule of law is something that Court of Appeal of Alberta Justice Jack Watson lives and breathes every day of his life.

In fact, the veteran judge - who graduated from law school when he was 21 years old - says the rule of law is “almost key” to his whole mentality, and he is very enthusiastic about it.

“I have had nothing but law thinking in my entire adult life and so, as a consequence, it was easy to sort of get mesmerized by the concept of the rule of law during the course of my travels through life,” says Justice Watson.

So what is the rule of law? Let Justice Watson tell you.

“The rule of law is actually imaginary. But, it is imaginary in the imagination sense, in the positive sense,” he says. “It is a thing which is around us all the time. It is sort of in the air that we breathe. It is the ultimate protection for everything we are and what we do. But, it is not visible per se and its importance is hard to define.”

Justice Watson, who was a Crown prosecutor in Edmonton for 27 years before being appointed to the Court of Queen’s Bench and then to the Court of Appeal, says the rule of law reflects the best consensual ordering of law, which he describes as essentially being the formality of the relationships between people.

“So the rule of law ultimately is in its essence a collection of foundational concepts, a foundation of concepts of values which describe and define how we relate to each other,” he says. “Why we live together as well as how we live together. That is what the rule of law does.”

A good example of how the rule of law operates in Canada is explained by Justice Watson using the analogy of a lone motorist at a deserted intersection in the middle of the night who waits patiently for the red light to turn green despite there not being anyone around. This illustration highlights the deep-seated respect that most Canadians have for the rule of law, both in theory and in practice, and shows their understanding of the value system and acquiescence to being part of the social contract that binds us all.

Justice Watson adds that the role of the rule of law is definitive of society itself. “It is what society is,” he says, adding that Canada could be described as being a legal entity defined by the nature of the rule of law that exists in it.

He also points out that every society and organization has a form of rule of law, including those that do not share our democratic values. But the rule of law that exists in those countries is a “miserable, skinny and weak” rule of law.

The ultimate and ideal form of rule of law is found in democracies like Canada and reflects the best quality of the rule of law, that being consensus, he says. “We have agreed to it. We have signed on to it. And we sign on to it every day.”

In Canada, our system of governance has three branches: the executive branch, the legislative branch and the judicial branch. The branches operate at both the federal and the provincial levels as Canada is a federation and there is a constitutionally recognized federal government and constitutionally recognized provincial governments.

The executive branch is the decision-making branch and is made up of the monarch as the head of state and the Prime Minister, as head of government, and his or her Cabinet. The federal legislative branch, which is known as Parliament and is made up of the monarch, the House of Commons and the Senate, makes the laws of the country.

The judicial branch, which includes judges and the courts and operates independently from the other two branches, interprets and applies the law. The integrity of the judicial branch stems from the courts’ impartiality, which flows from the essential feature of Canada’s judicial system, that being its independence from the two other branches of government. The quality of justice in our country can only be maintained if an independent judiciary is jealously guarded, and that is something that is vital in order for our democratic system to work and thrive.

Justice Watson says the crucial values that the rule of law primarily reflects are the principal elements of constitutionalism, that being federalism, democracy, rights and freedoms and equality. And within those foundational values are things like the Golden Rule: do unto others as you would have them do unto you.

“The Golden Rule is part of our rule of law. But, as with democracy and federalism, a rights and freedoms structure in our constitution is one of the ways we verify and strengthen the rule of law in our society,” says Justice Watson.

“We have those things and knowing that they are there, knowing they exist, gives us that treasure that keeps our brains working and believing in the rule of law,” he says. “Because we know. That is why we have open courts. Because we see justice administered. We see people punished. We see people not punished. But watching this, we can all say, yes, that’s how it works.”

Justice Watson says equality is the ultimate means of ensuring the rule of law as it tries to accomplish the closest you can get to fairness, that being the fair and equal treatment of all in the delivery of justice.

So at the end of the day, the rule of law is a concept which is both international and constantly evolving, says Justice Watson.

“The rule of law is not a law of rules and it is certainly not a law of rulers. And it’s also not law and order,” he says. “It’s a value system we believe in.”