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The rule of law is one of three important constitutional pillars that form the constitution. As has an uncodified constitution, rule of law asserts the supremacy of law and aims to prevent arbitrary use of power as well as to protect citizens’ lives and property. It is difficult to define as the difficulty stems from the fact that the rule of law means different things to different people. Different legal theorists contend with different conceptions. Joseph Raz purports a formal conception that looks at the form and enforcement procedure, Lord Bingham sits on the substantive side and argues that the rule of law should go further and consider fundamental rights, whereas Dworkin sits in the middle. This essay will highlight these conceptions in that order and evaluate Raz`s statement.
The rule of law, although mentioned and recognized in the Constitutional Reform Act 2005, does not have a clear definition and therefore has been subjected to proposals of multiple definitions by a multitude of legal theorists who disagree on the content of this constitutional principle. It functions as a measure of good governance, fair creation of laws, and just application of the law. It upholds an independent judiciary and equal access to courts.
The formal conceptions propose that law must be specified in the form, applied, and enforced by 4 central features which cohere and overlap: legality, certainty, equality, and access to justice and rights. Furthermore, it does not look at the content of the law, whether it is good or bad law, but sets important standards and directions, therefore it is viewed that if the law was passed in the appropriate process, then it is valid and enforceable. Theorists such as Dicey, Hayek (before his change of heart), or Raz are of such a view. On one side, the formalist conception is deeply entrenched in legal positivism and is ultimately concerned with the law as it is. Conversely, the substantive conception, linked with natural law theory is concerned with law as it should be.
To professor Joseph Raz, the rule of law was a political ideal that a legal system may lack or may possess to a greater or lesser degree it is not to be confused with human rights of any kind of respect. Therefore equality, justice, and democracy should be separated from the rule of law. The debate that Raz sparks concern the core meaning of the concept which focuses on rules and the correct procedures staying neutral to the content of the law. If moral qualities were to be considered then the rule of law would lose its function and independence and would no longer be law but a meaningless social philosophy. The fact that these qualities are perceived to be meaningless establishes Raz`s indifference to moral virtues as well as the instrumentality and shallowness of the formal conception, hence why it is also referred to as the thin approach. He further contends that laws can be morally questionable and that a non-democratic legal system, based on the denial of human rights, extensive poverty, racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law Raz likens the sharpness of a knife to the rule of law. To Raz, as long as the knife is of good quality then it does not matter what it is used for, whether it is surgery or murder, he talks about the efficacy of the rule of law in terms of validity and enforceability. He is not concerned with what the law is used for, he is concerned that as long as it is done the correct way, interestingly, it does not matter. Moreover, this approach can create moral issues itself, take the laws of the Nazis as an example, they were fascist and discriminatory if rule of law does not concern itself with even democracy then how can it protect all citizens. Raz is far from concerned about whether the conception allows for tyranny and oppression.
The substantive conception proposes that a system of rules is not sufficient to make or govern law, it needs to consider moral qualities. If the law goes against these moral qualities, it cannot be valid or enforceable. In comparison to the formal conception, it is therefore concerned with whether the law is indeed good or bad and focuses on the protection of fundamental rights coupling with those formal theories, not opposing them. Theorists such as Bingham and Fuller are of such understanding. Ultimately, the substantive approach is concerned with what the law ought to be. Relying purely on legal authority is not enough as law cannot be truly governed without a conscience.
Lord Bingham in his approach has tried to loosen the formal theory of the rule of law. He recognizes the importance of the form but goes further to say that there are higher standards that should be applied for the holistic good of citizens. These ideas originate from natural law which refers to a set of rules said to be derived from nature and reason, which have an inherent moral content. The rule of law does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power that they would otherwise enjoy. Two points in particular out of the eight that he provides have a greater emphasis on fundamental rights, the law must afford adequate protection of fundamental human rights and the adjudicative procedures provided by the state should be fair.
Legal theorist Ronald Dworkin holds both conceptions to be important and provides a rule book conception as well as a right-based conception as he says there must be a correct process but it has to be linked to political morality. Citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions. He has parity with Bingham as he also, within his 8 principles, provides formal as well as substantive elements.
The formal approach considers the importance of the rule of law and that it is a powerful principle of the constitution, so powerful that it should not be infringed by moral views, therefore leaving no discretion to the content but rather focusing on the authority of this principle, that it does not matter what the law is, good or bad, but that it does possess this power to be unquestionable. The argument for Nazi law can be perceived in a way that deeply depends on the constitution and the values that it holds. In a democratic country, it can be easily predicted that laws will naturally hold democratic and moral values therefore it does not matter whether the rule of law is only formal conceptually. However, it can be noted that Raz`s statement is only of significance when it is viewed from a formal perspective. Although, even when looking through this lens, it appears to be contradictory in its own approach. He states that the key virtue of the rule of law is to protect individual freedom. However, he himself admits that this freedom is limited. His view does not provide any protection from oppressive laws nor does it express the desire to. It can be said that if the procedure of law-making and application of it is correct, then there is no need to consider the outcomes, the effects that it may have on society in terms of morality, or any violation of human rights. If laws are made without democracy, as he states that it is to be separated from the rule of law, how can they be made fairly? The formal conception ignores the human rights of citizens who make up a constitution, without its people, would not be what it is today.
Judges, in their role as journeymen judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so. They would be bound to construe a statute so that it did not infringe on an existing constitutional principle if it were reasonably possible to do so.
Expanding on the above point, the substantive conception protects human rights regardless of whether a constitution is democratic, therefore if a democratic country had a change of heart or ideals, then the rights of individuals would still be protected if the law started to go bad. When there are no substantive components, laws themselves end up not being fair. Lord Bingham stated:
A state which savagely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside were the subject of detailed laws duly enacted and scrupulously observed.
This essay has considered all conceptions of the rule of law, critically analyzing the formal and the substantive approach, favoring the latter. Raz`s statement holds value only so far as the formal approach goes. The extension of these ideals through consideration of fundamental human rights proposes a grander picture, an honestly more fair view of the rule of law. If a formal approach can go as far as looking at the process, it makes sense for the principal to go further and consider the outcomes and its position in the constitution when considering the people of the constitution.
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