Does the discretion in our legal process challenge the idea of the rule of law?
In referring to matters of discretion of the law, we must note that in the state, there are institutions that have the mandate to interpret the law in judging offenders. These are legal institutions and they do not make the law, but only interpret the law. The discretion of in our legal process does not challenge the rule of law. In this essay I demonstrate the rationality of the following quote by Aristotle: “The rule of law is better than that of any individual”
The idea of the rule of law is that no one is above the law. Under the law everyone is equal. The rule of law implies that everyone is subject to behaviour that is in accordance with the law. Those who fail to do so are punishable by terms that the law dictates. For example, the law may state that murder is prohibited, and therefore a person who murders another is breaking the law and must suffer the consequence as per the law. However, we may ask what if the cause of the murder was in self-defence and that if accused did not murder, they would have been murdered or other people who they were protecting would be murdered. In this case, the law may be amended to allow for pardon if the defendant proves that the act of murder was prompted by the need of self-defence. It may seem that in the above example, the person acquitted of murder on grounds of self-defence is above the law; however that is not the case. The person is acquitted because under the law there is a provision given the said circumstances of the murder. Otherwise if there was no amendment to the law to introduce the provision, the case would have been decided in the positive and the accused found guilty. To further explain that the discretion in our legal process does not challenge the rule of law, I refer to the matter of a reference to the court of appeal of Quebec concerning the constitution of Canada in which the province of Quebec objects “to a resolution regarding a proposed patriation and amendment of the Constitution of Canada, adopted by the Parliament of Canada in December 1981.”
The appeal court of Québec ruled against an appeal to amend the constitution of Canada by giving the factum that it Quebec had no veto powers to the amendment of the constitution. The appeal court was therefore in accordance with the rule of law even if the province of Quebec had social rights to object to the imposition of new amendments without its consent. A deeper look at this matter reveals that the decision by the court was made in accordance with the idea of the rule of law, that once it’s the law, no party has a right to go against it. The only way the province of Quebec would have won the appeal case against the amendment of the constitution without its consent, was by proving beyond doubt that it had veto to do so, a fact that in their appeal case it failed to do so. As the outright expectation, the case was judged in the negative on that factum.
The case of the negative judgement on the case of Quebec province raises the question on the discretion of the law by the courts. What would be the interpretation of the ruling by the appeal court, if it had made a decision that Quebec had a case against the respondents and that its sovereignty right gave it veto power in the matter of constitutional amendments without a unanimous consent. This question can be answered differently as there are various theses on the idea of the rule of law. It will be helpful to look into the various theses that purport to define the rule of law. There are two fundamental positions that help to understand the issue of the rule of law. In one positional concept, the law is seen through patterns and behaviours of a society while the second positional concept views law as a model of the state.
So the rule of law according to the first concept championed by Eugen Ehrilich and Brosnislaw Malinowski refers to the actual behaviours that are observed in a community or society and is therefore independent of the state. Now if the law is independent of the state, the courts as the state cannot give a judgment that suggest discretion to the idea of the rule of law. The court serves to interpret the law and not go beyond that. The Canadian constitution as the law governing Quebec as a province of Canada, cannot therefore be interpreted otherwise so as to give veto powers to Quebec because as the law, it does not offer those provisions of veto power to a province, whether the enactment or amendment of that constitution was arrived at unanimously or not. In accordance with the concept of law being an order independent of the state or any legal compulsion, its jurisdiction is not left to the party that is offering it, but to the laws expectation of actual behaviour of the accused party. Since the rule of law is independent of state, then any party can provide jurisdiction as long as it holds in its judgement the supreme property of law, that it cannot be changed to fit the wishes of a given party, person, society or group. That makes the idea of law a positive inducement to people who make it their interest to follow the law as reciprocation for behaviour that they expect from their fellows in the same society. Even though this concept of law as championed by Ehrlich suggests that it is based on the customary norm of a society, its explicit recognition that the law is independent of state has made it resilient.
If the state is allowed to interpret the law so as to use it to govern the behaviours of the citizens in the state, then there ceases to be a rule of law, rather it becomes a rule by law. In such a scenario the state is able to metaphorically bend the law so that decisions by courts help to advance the political policies of the state. As such, independent discretion of the law on individual cases is subjected to the overall aim of the state, and a decision is made accordingly. This position contravenes the idea of the rule of law as an actuality that cannot be influenced, and that individuals are equal under the law.
The second category of the concepts of law implies that law is a norm that is maintained by the institutions that enforce it. Further arguing that if the neglect of the social norm is met by coercion by those socially privileged to do so, so that norm is retained, then such becomes a legal norm. Individuals therefore observe the legal norm in their behaviours mainly as a result of the fear of sanction by enforcers. So that implies that without the enforcers of the norms as observed in pre-state societies then there cannot be law. This concept of law leaves us to wonder, what happened to disputes resolution in pre-state societies, if we accept that they had no law. If we follow Roscoe Pound’s concept, that law is a social control characterized by a politically organized society that applies the force then we are forced to interpret the Quebec court of appeal decision on the Quebec case as the a result of the state of Canada ensuring that provinces under it comply by its constitution do not possess veto in the case of amendments. Such an interpretation of the ruling is faulty because it makes the application of law and its subsequent submission by those under the law, a matter of measure of power on who is stronger than the other.
Aristotle said, “The rule of law is better than that of any individual”, having known that when law is considered dependent of the state, and it amounts to the rule by the individual or group that runs the state. A rule by individual has no real power and can be overcome by another who proves stronger than that individual. For example, in democratic states, the change of state power from one party to another may imply that the new party has power to change the law, which in this case are the norms of the citizens, and therefore make some acts lawful that were otherwise unlawful and this may or may not take into consideration the impacts of the new laws on the society. This is in effect a description of a totalitarian state.
In conclusion, we can say that the discretion of our legal processes does not challenge the law, when they recognize the independence of the law from the state as demonstrated by negative decision of the province Quebec appeal case. Otherwise, if their discretion is in favour of the concept of the law being an order by the state maintained by coercion, which amounts to rule by law, then the legal process challenges the rule of law.
Re: An Objection to A Resolution to Amend the Constitution, 1982  2 SCR at 793 [Objection]
 Ibid at 800
 B.Z. Tamanaha, “An Analytical Map of Social Scientific Approaches to the Concept of Law” (1995) 15 Oxford J Legal Stud 501 at 503
 Ibid at 505
 Ibid at 506
 Ibid at 505
 Ibid at 510
 Objection Supra note 1 at 818