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46 U.W. Austl. L. Rev. 1 (2019)

handle is hein.journals/uwatlw46 and id is 1 raw text is: THE HARD PROBLEM OF LEGALITY JAMIE BLAKER* Does the Australian Constitution guarantee the rule of law? That is a hard question, and in this article, I seek to explain why. Put simply, the question is hard because our answer will depend on our broader theory of how to interpret a Constitution. If one commits to the theory of originalism, for example, one will conclude that the Constitution does not guarantee the rule of law. Yet if one commits to other popular and credible theories such as perfectionism or pragmatism one may reasonably form the view that the Constitution does substantially guarantee the rule of law. In the earlier parts of this article, I establish this link between interpretive theories and the rule of law under the Constitution. In the latter parts of the article, I go about discrediting one interpretive theory originalism. Having discredited originalism, I conclude that we ought to take other interpretive theories, such as perfectionism and pragmatism seriously. Ipso facto, we must take seriously the possibility that the Constitution, on its best interpretation, does guarantee the rule of law. This conclusion is in tension with the work ofLisa Burton-Crawford, to which this article is a response. _EINTRODUCTION ' ' Does the Australian Constitution guarantee the rule of law? In a recent work, Lisa Burton Crawford has offered a complex answer.1 She has first observed that - like the concepts of liberty and justice - the concept of the rule of law is a contested concept. That is to say, different people are liable to advocate for different conceptions of what the rule of law is.2 On some of these conceptions ('moral conceptions'), the rule of law is a moral ideal, only attainable by a system of laws that treats citizens with dignity, and preserves the citizenry's fundamental rights and liberties. On other conceptions ('formal conceptions'), the rule of law represents a far more limited and austere commitment: merely, a commitment to government under rules that are prospective, clear, general, public, stable and consistent .3 Returning her attention to the Australian Constitution, Crawford observes that the Constitution does not contain an express guarantee of the rule of law, let alone endorse any one particular conception of the rule of law.4 And so - Crawford reasons - the relationship between the Constitution and the rule of law is weak and •LLB (Monash), LLM (Cambridge). My thanks to Duncan Wallace and Tiffany Gibbons for their comments. All errors and views are my own. 1 Lisa-Burton Crawford, The Rule of Law and The Australian Constitution (2017, Federation Press). 2 Ibid, 10. Ibid, chs 2-3. 4bid, 170.

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