When is it enough to just follow the rules? The escapades of Rick Barker and Bill English raise some quite gnarly questions.

For my sins, I spent last Friday at the New Zealand Legal Research Foundation's conference on "Modern Challenges to the Rule of Law". This is the sort of topic that we legal academics (and a smattering of real lawyers possessed of an academic inclination) sit around debating at length without managing to reach any meaningful conclusions. Which probably sums up much of my job, now I think about it!

That said, the day gained a frisson of excitement with the unexpected attendance of two "outsider" representatives: Vincent Siemer, who (once again) is facing contempt of court proceedings brought by the Solicitor-General; and Penny Bright, the inveterate protestor against local body "malfeasance". The prospect that this duo might rise up in full-voiced opposition to the powers that be was enough to cause three police officers to linger discretely outside the conference room doors. Somewhat disappointingly, my hopes that I would get to witness first hand the sharp end of "the rule of law" at work were dashed as they proved to be remarkably respectful of the day's proceedings.

I recount this story because a recurring theme at the conference - that "the rule of law" requires that the law consist of clear, certain and predictable rules - seems pertinent to a couple of this week's political stories. Before turning to consider them, however, the reasoning behind this reading of "the rule of law" needs to be spelled out in a little more depth.

Clarity, certainty and predictability in the law is said to be necessary because we are under a duty to do what the law requires of us, a duty that is enforceable by sanctions. Thus, unless we can know in advance exactly what the law requires of us, then we are made subject to Bentham's "dog law" - where we find out that we have failed in our duty only upon being punished. The flip side to this position then is that if the rules do not require something of us (or do not prohibit us from doing something), then we face no legal duty to act (or not to act). On this picture of "the law", therefore, "duty" becomes a matter of finding out what the relevant legal rule is and then following that rule - no more, no less.

While this can never be a complete picture of "the law" as it actually operates in a complex society, it is an account that exerts a strong influence over both academic and popular thinking. However, it also risks collapsing our ideas of right and wrong into the simple question of "were the appropriate rules followed?" And it is this point that I think has been amply illustrated by events of this week.

Take first the revelation that Labour used parliamentary resources to undertake opinion polling of the electorate's views on policy matters, while also instructing those doing the polling to misrepresent their identities. Did this activity break "the rules"? I think not.

Despite my colleague Bryce Edwards' contention "that any phone polling at Parliament would fall foul of the rules [on using parliamentary funding]", the relevant Speaker's Direction at 4.12(1)(b) permits the use of such resources for "developing, researching, critiquing and communicating policy". So using tax-payer funded phone lines to gauge the electorate's views on policy matters was "within the rules". Furthermore, there is no general legal rule saying you cannot misrepresent who you are when talking to another person over the telephone. And while there may be Privacy Act concerns about how the information is used (especially if information obtained about policy views is recorded against the names of the individual respondents), there isn't any evidence that such misuse actually took place.

Consequently, while John Key initially called for an inquiry into this "serious matter" - a call that has become muted since (admittedly anonymous) claims emerged that National has engaged in similar practices - I doubt there is anything for such an inquiry to uncover. The rules were followed. But does that mean the practice was right?

I think not. In fact, I'd pretty much concur with everything the Dominion Post has to say about the matter in this editorial. It just isn't on for a political party to lie to the voters in order to find out what they really believe about issues - the ends simply do not justify these means. Even though Rick Barker has (sort of) said "sorry" for the episode and Labour's leadership has indicated that it won't happen again (because of "the controversy" it created - hardly much of an admission of wrongdoing), the episode reflects badly upon their basic ability to tell right from wrong. Which is quite different from knowing what the rules say about the matter.

Similarly, the Auditor-General's "clearing" of Bill English over his accommodation allowance claims illustrates the complex interplay between "following the rules" and "doing what is right". In essence, the Auditor-General concluded that while Bill English was not eligible to get the ministerial allowance he received (and subsequently has repaid), he was not at fault for seeking it because the allowance rules were confusing and he had received incorrect advice on how they applied to him. Thus, while the rules may have been broken, the blame lay with those in charge of overseeing the rules and not Bill English.

I have some sympathy with that general finding. After all, it's difficult to damn someone for breaching a rule when they've been told by those responsible for the rule that the action is permissible. But is the excuse "I was trying to follow the rules, it's just I was mislead about what they require" good enough to completely exonerate someone subsequently found to have broken the rules?

Obviously not - the maxim "ignorance of the law is not excuse" applies even when you've tried to find out what the law is. (New Zealand's large banks currently are finding this out first hand, to the tune of some tens of millions of dollars.) Furthermore, the timeline around Bill English's changing relationship with the family trust that actually owns "his" home leaves a sneaking suspicion that he sought to structure his affairs so as to meet the allowance requirements. If so, any sympathy that he was mislead about those requirements is hard to sustain. Or, at the least, his actions become uncomfortably similar to high-income earners who engage in "legitimate avoidance behaviour" with respect to their taxes - thereby undermining the good will of lower-income taxpayers.

I'm not sure I have any grand lessons to draw from all of this - I did say at the outset that meaningful conclusions are scant on the ground when it comes to musings on the rule of law. However, one thing I will say is that a claim "the rules were not broken" (or even, "the rule breach was not my fault") is not always a complete defence to an accusation of wrongdoing. For one thing, we can always ask if the rules are good ones to have in place. For another, keeping to the rules isn't the same thing as acting in a good way.