Must a Rule of Law be Promulgated?

The Irish Supreme Court Says Yes

Ireland is a unitary state where most of the important and consequential questions of policy are decided at the national level by the Government and Oireachtas (Irish Parliament). Local government enjoy a degree of policy autonomy in areas like social housing, refuse collection, maintenance of public parks, and in setting goals and rules for planning and development.

Even these modest powers, however, are frequently subject to override or direction by the Oireachtas and statutory authority exercised by Ministers.

The Irish Supreme Court in Conway v Minister for Housing [2024] IESC 34 recently considered the constitutionality of a provision of the Planning and Development Act 2000 (the 2000 Act) that empowers the Minister for Housing (the Minister) to set binding statutory guidelines for both local authorities and the national planning board that take priority over any contrary development plans and guidelines adopted by a local authority.

An issue that arose during the course of proceedings was whether there is a constitutional obligation for rules created pursuant to statutory authority granted by the Oireachtas to be published and promulgated to the public.

All members of the Court answered yes to this question. Where they divided sharply was over where the precise source of this constitutional obligation was.

The Irish Constitution imposes a requirement for legislation enacted by the Oireachtas to be promulgated, but does not explicitly mention whether there is also a requirement for the executive to promulgate and publish the rules it makes pursuant to statutory authority.

For two of the judges - Hogan and Donnelly JJ - the obligation for rules of a “binding character of general application” to be promulgated is rooted in the democratic character of the State provided for in Article 5 of the Constitution. It was Ireland’s designation as a democratic State that required at “least basic publication requirements” to be provided for in the case of guidelines capable of having binding force.

Donnelly J went so far as to argue that the “concept of democracy necessarily encompasses the rule of law” and its attendant precepts like ensuring the binding rules citizens are expected to adhere to can be known by them.

The majority of the Court - O’Donnell CJ, Collins J, Dunne J - however, took a different and I think more classical tack: they regarded promulgation of a rule purporting to have binding force of law as inherent in the very nature of what a law is.

O’Donnell CJ saw no good reason to conflate the rule of law and its particular virtues with the concept of democracy. O’Donnell CJ disagreed with treating Article 5 and its broad references to the democratic nature of the State as a “receptacle for specified values thought important”, like those pertaining to the rule of law. The Chief Justice preferred to locate the requirement for promulgation in the “principle of legality” which is “intrinsic” to the Constitution.

The Chief Justice invoked the story by Suetonius about the Emperor Caligula, who in an attempt to cynically comply with the obligation to publish laws, posted them up “but in an awkwardly cramped spot and written so small that no one could take a copy”. The Chief Justice said this vivid example illustrates the “fact that the obligation of publication of laws is not derived from the concept of democracy, but rather from something more basic: the principle of legality and the rule of law.”

Collins J similarly rooted the requirement for promulgation and publication in the rule of law and principle of legality, which he said were “inherent in the text and structure of our Constitution”. Collins J then proceeded to highlight the extent to which he thought that promulgation and publication of binding rules was presupposed by a range of provisions, including Article 38.1’s protection of a trial in “due course of law” and Article 40.4’s prohibition of deprivations of liberty “save in accordance with law.” Collins J added that because Article 15.2.1. authorizes the Oireachtas to make laws “for the State”, it followed that the content of laws must be published to the State and its citizens.

Collins J therefore reads the term law as used in the Constitution to only encompass those binding rules that have been subject to promulgation and publication to citizens such that they can “know in advance what the law requires of them”. For binding rules that apply to a sub-section of the population, what is required “at a minimum” is publication sufficient to reach “those sectors... potentially affected”. This implies that for the Court a rule that seeks to bind citizens that is not published to them - or at least to those affected by its reach - is not considered a valid “law” under the Constitution.

Although not explicitly framed as such, the majority of the Supreme Court worked out an understanding of the nature of what a law is that is profoundly classical. Law in the classical view is not just any ordinance issued and enforced by the will of a designated authority and referred to by officials as “law”; it is an ordinance made for the common good of the community and its citizens and, crucially, promulgated to them so that they can also exercise their practical reason by adhering to its requirements and doing their part in upholding the common good.

The classical picture of the intrinsic nature of law and legality, which the Supreme Court implicitly seems to share, is rich in non-posited normative presumptions about law’s point, including that it is a reasoned form of social ordering - distinct from warlordism or gangsterism - that respects the moral distinctiveness of human persons as rational animals who truly flourish in peaceful and just political community.

St Thomas Aquinas - whose famous definition of law was that it is an ordinance of reason for the common good, made by him who has care of the community, and promulgated - would heartily approve of much of the Supreme Court’s approach.