CLA News / How do legal professional bodies use and misuse the rule of law? by Simon Henderson

What do legal professional bodies mean when they refer to upholding the rule of law? It is an important question, which few have given consideration or research attention to. Traditionally, much of the focus on how the rule of law is applied is given to states. This is understandable, given that the rule of law at its core is a principle of governance. However, overlooking the role of legal professional bodies is a significant gap.

At the heart of the work of many legal professional bodies lies a commitment to uphold the rule of law. It is often included in their core principles, objectives, strategies, or referred to in speeches by their presidents, press statements or annual reports. The rule of law is seen as central to upholding the independence of the legal profession.

Yet, much like countries, the way in which legal professional bodies regard the rule of law is not uniform. The choice of what is contained within the rule of law, whether a set of principles, a prescribed definition or even    gleaned from practice, impacts how they give effect to the rule of law and what topics they choose to engage on. Lawyers and members of the public should critically analyse what legal professional bodies mean when they refer to the rule of law. A selective interpretation of the rule of law leads to the diminishment of the protection it can afford citizens, given the central role that legal professional bodies play. It also undermines the independence and regulatory functions undertaken by legal professional bodies.

As this article will show, the failure to interrogate the way in which legal professional bodies signify when referring to the rule of law, establishes a false perception of equality of peers between legal professional bodies themselves. They are not all speaking the same language when they refer to the rule of law. From the global and regional to jurisdictionally focused legal professional bodies the differences can be stark.

This article will consider in more detail, the examples of the Law Council of Australia, Law Society of Hong Kong, and the Japan Federation of Bar Associations, to demonstrate how, disturbingly, the rule of law is misused by some legal professional bodies. It will also highlight various actions that could be taken to increase awareness and help to rectify these gaps. This article is informed by outreach conducted to each of the legal professional bodies.

Debate over what is included in the rule of law
From the Magna Carta to Lord Bingham’s rule of law principles, there has been extensive debate and academic discourse about what the rule of law includes. One of the most influential legal scholars on the rule of law, Albert Dicey, in the 1880s considered that the rule of law is composed of at least three concepts. Firstly, the supremacy of the law as opposed to arbitrariness or even wide discretion by governments; secondly, the equality of all persons before the law; and thirdly, the rights of individuals.

While Dicey’s framing is helpful, more modern and relevant definitions of the rule of law place a greater emphasis on the content of the law itself, including themes of accessibility, clarity and access to justice. The rule of law, as with other legal concepts, evolves over time. This is reflected in Lord Bingham’s eight principles. Lord Bingham’s definition of the rule of law favours a more substantive approach towards the protection of rights, often called a “thick” version of the rule of law.

Lord Bingham’s principles are also replicated in how the United Nations defines the rule of law, which sees it as:
“…outlining how all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”

Multi-jurisdictional legal professional bodies defining the rule of law
Many multi-jurisdictional legal professional bodies draw upon the language put forward by Lord Bingham and the United Nations, among other sources. For example, the International Bar Association (IBA), the largest international organisation of lawyers, passed a resolution in 2005 which mirrors much of these definitions and principles, while emphasising the role of an independent legal profession and the protection of lawyer and client communications. The IBA has called on its members, which includes 190 bar associations in more than 170 countries, to “speak out in support of the rule of law within their respective communities”.

The IBA expanded on this 2005 resolution with additional commentary in 2009. The commentary does not purport to be complete. It merely sets out some of the essential characteristics of the rule of law, which “should command world-wide respect”. The IBA notes that some human rights are necessary basic principles of the rule of law, while others are more contentious. Yet it states that human rights cannot be had without the rule of law.

Meanwhile, the Union Internationale de Avocats (UIA), which brings together two million lawyers from 110 countries, agreed in 2017 to adopt the same definition of the rule of law as the United Nations cited above. It is designed to guide the UIA’s actions and the topics that they choose to speak out on. The Commonwealth Lawyers Association (CLA) does not have a definition of the rule of law, but refers to it extensively in its public materials and decisions to speak out. The CLA draws upon the Latimer House Principles, Commonwealth Charter, Harare Declaration, among other materials.

In general, all multi-jurisdictional legal professional bodies have adopted a version of the rule of law, regardless of whether it is defined, referring to a set of essential characteristics, or by practice, which reflects a substantive version of the rule of law, incorporating commitments to international human rights norms and standards.

Challenges in defining the rule of law
Yet, legal professional bodies operate in a variety of states ranging from democratic to authoritarian. As such, their approach to the rule of law may be influenced by legal, political and cultural contexts. Some legal professional bodies are independent and operate in democracies, for example, the Korean Bar Association. Others operate under the auspices of government and a political party, functioning in one-party authoritarian states, for example the All China Lawyers Association.

The rule of law has an inherent political contextual meaning, because it refers to principles of governance. Speaking about the overreach of government power, such as how the law is applied arbitrarily or the separation of powers, involves arguments which will be framed as legal, but have political implications. As such, in places such as China or Vietnam, which are ruled by repressive one-party regimes, these rule of law principles do not operate in practice as they would in Australia, Japan or Taiwan.

It is why when any legal professional body speaks about safeguarding the rule of law, what they mean should be queried. If the actions or inactions of legal professional bodies erode the rule of law, by selectively applying it based on the political philosophy of their jurisdiction, then lawyers and citizens will not fully receive the benefits of the rule of law. If the main source of law and the lawmaking system are devoid of legitimacy, the rule of law loses its value as a legitimising formula. It becomes a tool of oppression. It becomes rule by law.

To illustrate some of these distinctions, this article will now look at three different legal professional bodies, covering Australia, Hong Kong and Japan. These jurisdictions were chosen for their different legal sources, political structures, as well as being jurisdictions which the author has worked in and has strong familiarity with.

Law Council of Australia
The Law Council of Australia (Law Council) represents the legal profession at a national level. It is a federal organisation representing more than 110,000 Australian lawyers through their bar associations and law societies and Law Firms Australia. Of the three legal professional bodies researched here, the Law Council had the most comprehensive approach towards the consideration of rule of law issues.

The Law Council states that one of its key roles is to promote and defend the rule of law. This is reflected in the Law Council’s Strategic Plan 2021-2026, which includes the strategic objective of strengthening the rule of law. Contained within the strategic objective are commitments such as: leading law reform and legal policy, championing the effective delivery of the rule of law as the foundation of a just legal system, defending the rule of law in the Asia-Pacific, among other commitments.

The most instructive document for informing the Law Council’s consideration of what the rule of law means is its Policy Statement – Rule of Law Principles, which was released in 2011. The Law Council’s key principles include:

• The law must be both readily known and available, and certain and clear;
• The law should be applied to all people equally and should not discriminate between people on arbitrary or irrational grounds;
• All people are entitled to the presumption of innocence and to a fair and public trial;
• Everyone should have access to competent and independent legal advice;
• The Judiciary should be independent of the Executive and Legislature;
• The Executive should be subject to the law and any action undertaken by the Executive should be authorised by law;
• No person should be subject to treatment or punishment which is inconsistent with respect for the inherent dignity of every human being; and
• States must comply with their international legal obligations whether created by treaty or arising under customary international law.

Additionally, the Law Council has developed other policies which expand on individual components of the rule of law principles. For example, the Law Council’s Policy Statement on Judicial Appointments. It is designed to ensure transparency in Federal judicial appointments and diversity in Australia’s judicial officers. Another example is the Law Council’s Policy Statement on Mandatory Sentencing. It highlights the Law Council’s opposition to mandatory sentencing, and the relevant obligations of the Commonwealth government under international law.

Australia has a strong rule of law tradition, yet at the state and federal level, governments tend to play a more minimalist role in attempting to define or shape the rule of law. Attorneys-Generals often speak about the rule of law in speeches and the Commonwealth Attorney General’s Department, among other departments, will signify its importance. However, it is not usually a prescriptive approach as to how the rule of law should be interpreted.

Law Society of Hong Kong
Hong Kong and the Law Society of Hong Kong provide an interesting case study to analyse. While historically, Hong Kong has had a reputation for a strong rule of law, that has rapidly deteriorated in recent years as it has descended towards authoritarianism. The centralisation of power, focus on external threats, disbandment of political and civil society opposition, and the expansion of executive powers through the National Security Law and the Safeguarding National Security Ordinance, have upended Hong Kong.

The Law Society of Hong Kong is the self-regulatory body and professional association for solicitors in Hong Kong, comprising over 13,500 lawyers. It is distinct from the Hong Kong Bar Association, which covers barristers. The Law Society of Hong Kong does not have a definition of the rule of law, nor does it have a set of rule of law principles. However, it is seen as a “core value” by the Law Society of Hong Kong. This is a consistently used phrase by Presidents of the Law Society of Hong Kong in their speeches and in other content, such as annual reports, and social media content on LinkedIn.

Of concern, since 2020, there have been intense efforts by the Hong Kong government to define and craft the rule of law it into a “correct and proper” definition. There have been extensive policy initiatives, statements, educational programs, plays in primary schools so that children learn the “proper concept of the rule of law”, and more. All of this is aimed at shaping the public’s understanding of the rule of law, with a focus on law-abiding awareness and obedience to the law. This often excludes principles such as compliance with international legal obligations, including human rights obligations, legal clarity, and separation of powers. Only “proper information” on the rule of law is to be disseminated.

The Law Society of Hong Kong has embraced this narrow definition of the rule of law, backing these government policy initiatives, replicating government talking points and on occasion appearing side by side with government officials at events. This has included the Law Society of Hong Kong playing an active role in promoting the National Security Law, such as during the 35th LAWASIA Conference in Sydney in 2022. Often, the Law Society of Hong Kong are trying to correct what they, and the Hong Kong government, call “misunderstandings” and criticising Western media. It is part of wider efforts that the Law Society has undertaken to “tell good stories”, a Chinese Communist Party political slogan regarding international efforts to strengthen and innovate external propaganda.

The Law Society of Hong Kong’s active promotion of national security laws is notable, because the National Security Law and Safeguarding National Security Ordinance fail to comply themselves with principles of the rule of law. That is due to their lack of legal clarity, expansion of executive powers without review, and erosion of judicial independence – among other significant concerns. The misuse of these laws has led to the UN High Commissioner on Human Rights, independent UN human rights experts, and the UN Human Rights Committee, to call for the repeal of the National Security Law and to refrain from its use. However, no such calls have been made by the Law Society of Hong Kong.

Japan Federation of Bar Associations
The Japan Federation of Bar Associations (JFBA) is the peak legal professional body in Japan. Its membership comprises of 52 local bar associations, 46,900 lawyers, as well as legal professional corporations, registered foreign lawyers, and other members. The JFBA operates as a self-regulatory organisation.

The JFBA does not have a set of rule of law principles or rule of law guidelines. It has some documents which refer to the rule of law, although those have a predominantly international focus. For example, the Mission Statement on International Affairs from 2016. The Mission Statement does not provide a set of rule of law principles in the same way as the Law Council. However, it does draw a link between the rule of law, human rights and public service of the legal profession. That includes contributing to strengthening and developing international human rights standards to address human rights issues inside and outside of Japan. The Mission Statement also centres the rule of law as a means to realise peace, which is reflective of the UN definition and modern Japanese geopolitical engagement.

Another relevant JFBA document is the Grand Design under the Mission Statement on International Affairs, established in 2019 and revised in 2024. Additionally, the JFBA has prepared the Grand Design of Criminal Justice Reform for Preventing Miscarriages of Justice, which has been revised several times, with the most recent edition being released in 2024. The latter of which makes no explicit reference to the rule of law, but addresses issues such as the presumption of innocence and the entitlement to a fair and public trial. The reference to the rule of law is also a prominent feature of the JFBA’s engagement with international bar associations, yet in terms of preparing a definition to guide that work the JFBA has formed the view that it is not necessary.

Meanwhile, similar to Australia, there is a relatively limited engagement of attempts to define or scope out the rule of law by the Japanese government. It is a feature of some of the Ministry of Justice’s work, although often it has an international rather than domestic component. This is also reflected in the public engagement by the Ministry of Foreign Affairs as part of the Japanese government’s “Free and Open Indo-Pacific” policy approach. There is not the same sort of alignment or joint advocacy by the JFBA compared to the Law Society of Hong Kong.

Public interventions by the Law Council of Australia, Law Society of Hong Kong, and Japan Federation of Bar Associations

Legal professional bodies interact and intervene on rule of law issues for a variety of reasons. A public intervention is not possible every time there is a threat to the rule of law. There is not the scope to do so. Other activities or interventions may also be undertaken. However, considering public engagement as opposed to private advocacy on rule of law is critical, because it signals to the public at large the priorities of a legal professional body. In comparing the public interventions of the Law Council of Australia, the Law Society of Hong Kong and the JFBA, several themes emerge.

Firstly, interventions may not be framed as a rule of law issue, yet they may still cover rule of law topics. For example, the JFBA has consistently highlighted injustices within the criminal law system in Japan. This was notable during their public engagement on the wrongful conviction and acquittal of Iwao Hakamata who spent 46 years on death row. The JFBA campaigned for a retrial. Upon Iwao Hakamata’s acquittal, as well as during the retrial, the JFBA highlighted the miscarriage of justice, the death penalty system, and issues with the disclosure of evidence in retrial, as areas requiring reform.

Secondly, interventions may be focused on foreign concerns on the protection of the rule of law in the legal sector, rather than considering the rule of law principles related to governance. For example, the Law Society of Hong Kong will speak out when people externally express criticism of the rule of law in Hong Kong, but does not tend to speak out on certain rule of law issues within Hong Kong. That has been clear in their failure to mention how Hong Kong’s national security laws do not comply with international human rights standards or the rapid decline in civic space and the impact that it has on the rule of law. In another problematic example, The Law Society of Hong Kong’s action in disbarring Australian citizen and Hong Kong lawyer Kevin Yam related to his participation at a United States Congressional hearing was framed as a rule of law issue. Yet, the Law Society of Hong Kong’s actions were condemned and dismissed on rule of law grounds by other legal professional bodies, such as the Law Society of England and Wales and the Council of Bars and Law Societies of Europe.

Thirdly, a wide variety of topics are considered by each legal professional body as part of their public engagement. However, a review of public statements and speeches in the last five years highlights how certain rule of law principles are given priority over others. The Law Council of Australia has the widest focus, both in domestic and international issues. They consistently refer to the rule of law, referencing themes such as access to justice, limitations on executive powers, independent judiciary, compliance with international legal obligations, clarity of the law, and equality before the law. The JFBA has a reasonably wide focus. Priority areas include equality before the law, access to justice, compliance with international legal obligations, presumption of innocence, and inhumane treatment which generally refers to its anti-death penalty position. Meanwhile, the Law Society of Hong Kong has the narrowest focus. Its public statements tend to cover compliance with the law and independence of the judiciary, and to a more limited extent, independence of the legal profession.

Conclusion
There is a disconnect among legal professional bodies about what the rule of law means. While most chose not to define it, several have principles on what they consider the rule of law to mean. In other cases, they can be implicit, analysed by their various statements, strategies and other public content.

The intersection between human rights, particularly political rights and civil liberties, and their connection to the rule of law, is often a missing feature. In general, legal professional bodies in democracies support, in practice, a thick and substantive version of the rule of law. While in general, legal professional bodies in authoritarian jurisdictions profess to support the rule of law, it is not a thin version, nor supported by their practice.

Disappointingly some legal professional bodies, such as the Law Society of Hong Kong, promote a selective interpretation of the rule of law or endorse a state dictated interpretation of the rule of law. This is deeply problematic. Using a politicised framing of the rule of law undermines their claims to be an independent legal body. It also fails to properly protect the rule of law. There is a long overdue need to acknowledge and account for this imbalance. Not all legal professional bodies are speaking the same language when they refer to the rule of law. The rule of law that the Law Society of Hong Kong refers to is not the same as the rule of law that the Law Council or the JFBA refers to. Three actions should be taken.

Firstly, legal professional bodies should challenge other legal professional bodies when they purport to speak up for the rule of law, but are dishonest in its application. That includes where opportunities arise at legal conferences, opening of the year legal events, bilateral meetings, and other events. Legal professional bodies who are disingenuously advocating its use, should refrain from doing so.

Secondly, there would be value in encouraging greater consistency among legal bodies on the meaning of the rule of law. While it need not be a definition, it should be expressed more clearly through principles to serve a practical purpose. It should include a greater acknowledgment and understanding of the need for states to comply with their international human rights law obligations, and recognise all of the governance principles contained within the rule of law.

Thirdly, legal professional bodies should continue to provide support to those legal professional bodies who are willing to speak out against threats to the rule of law, regardless of the consequences. International legal bodies, such as the IBA, CLA, UIA, as well as some jurisdictionally focused legal professional bodies, such as the Law Council of Australia, are already strong in this respect. Such activities should continue and be spread more widely to ensure solidarity.

A legal professional body that promotes and defends a principled and consistent interpretation of the rule of law is a stronger legal professional body. It is more independent. It can better protect the rights of lawyers and citizens. It is an objective to aspire to and advocate for.

Simon Henderson
Simon Henderson is an international human rights lawyer and foreign policy analyst, with experience across the Asia-Pacific. He is a member of the Law Society of New South Wales Human Rights Committee.

16th March 2026

Credit: This article was first published by Law Society of New South Wales as part of the Law Society Journal Online; the CLA thanks the Law Society for their gracious permission to reproduce the article.