The rule of law is an important legal principle. It checks the use of discretion by those with the authority to make decisions which influence the public. It can be considered of high importance to the judiciary who can engage it to analyse and influence the decisions made by the government.
The rule of law is more complex than this. It can be considered in both its formal and substantive precepts. These are explored by Craig in 'Formal and Substantive Conceptions of the Rule of Law' (1997).
What is the formal conception of the rule of law?
According to Craig, the formal conception of the law does not attempt to 'pass judgement' upon whether the law being considered is 'good' or 'bad' in its nature. It takes a more closed-minded outlook upon the manner in which it was promulgated, or brought into effect. For instance, was the individual who implemented the law in a position to do so? Did they follow the correct procedures to bring the law into force? Has there been adequate consideration of the 'enacted norm', ie. does the law in its new form allow a person to plan their life around it and make changes as they see fit?
Furthermore, the temporal enacted norm must be looked into- is the law here retrospective or forward looking? It is important that laws are not retrospective, ie. those who did something which was legal at the time they did it must not be penalised if it is to become illegal in the future.
What is the substantive conception of the rule of law?
The substantive conception of the rule of law seeks to extend the doctrine further by identifying which laws are good and which are bad. The formal considerations remain in place but are expanded upon by consideration as to the laws efficiency and ways in which it could be improved. Substantive rights are suggested by many to be derived from the rule of law, when these rights are adhered to within the legal framework it can be stated that the law is 'good', whereas when they are dismissed those who subscribe to the substantive school of thought would describe the law as 'bad'.
FORMAL AND SUBSTANTIVE SCHOLARS
Raz- formalist,
Dicey- argued to be a formalist by Craig,
Unger- challenged the formal conception of the ROL,
Dworkin (via Sir John Laws/Trevor Allen)- substantivist,
It is important to note that certain scholars assert that there should be a 'middle way' between the formal and substantive conception of the rule of law.
Raz's Interpretation of the Rule of Law
Joseph Raz is an advocate of the formalist conception of the rule of law. He asserts that the substantive interpretation leaves an excess of room for political debate, which is already covered and noted in political theory. There is no need to intertwine the argument as to whether laws are 'good' or 'bad' with the formal conception of the ROL. This view is identified with in his assertion that 'If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy'. This means that in order to provide any explanation as to why a law succeeds on substantive grounds requires the development of a political theory, making it highly impractical and pushing legal thought into political grounds whereby certain theories may be allowed to triumph over overs and bestowing the law with a political bias. Raz argues that the point of the rule of law is to impose the tautology that the govenrment should follow the law, to ensure that it is imposed through the correct mechanisms by the correct officials, to ensure that the ensuring norm is clear and that the ensuring norm takes into account temporal considerations to make sure that the new law is not retrospective. In this sense, Raz puts forth the ideal that laws should be clear, properly written and guided by impartiality. Of course there is the negative value to this, as the state is allowed to do a whole manner of things and the rule of law minimises the danger done by the law itself. There is also a positive value in the sense that even if the law is 'morally reprehensible' it must still be applied and it is necessary to ensure that individuals adhere to it.
Raz also identifies with the fact that the rule of law may have to be sacrificed as a means to benefiting the legal system in other areas. For instance, the values of clarity, temporal consideration, and following the correct mechanisms may be forgone in order to adopt more textured, open legislation. It must also be noted that there may be cases in which the law cannot be sufficiently prospective and clear to cover all future eventualities. Raz regards the rule of law as one component of the legal system, and although an important one, it must not stand in the way of the attainment of other goals within the legal realm as this would act as a detriment to development and legal evolution.
The Diceyan Conception of the Rule of Law
1. Dicey states that 'no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law can be contrasted with every system of government based on the exercise by persons in wide, arbitrary or discretionary powers of constraint.' This notion has been the subject of critique for Dicey's failure to identify with the utilisation of discretionary powers at his time of writing, nor the necessity for discretionary powers alongside the growth of the government in the nineteenth century.
Some have suggested that the utilisation of the word 'arbitrary' can be used to suggest that Dicey was in fact subjective in his thinking, as it suggests that laws which can be labelled as 'arbitrary' could be dismissed as bad law. However, it is clear that Dicey's first identifiable limb of the rule of law is formalist. This is because it states that 'no man is punishable' unless the correct legal procedure is followed, that the trail is fair before the courts of the land and that the breach in law must be distinct- which adheres to the clarity of the ensuring norm principle aforementioned. As for the substantive component evoked by the word 'arbitrary', this must not be dismissed, even if proper procedure is followed meaning that the law is to pass the formalist test as to its validity it may still have an arbitrary influence? Would this invalidate the law in the eyes of Dicey? Not necessarily, this is due to the fact that this component can still be bestowed with a formalist interpretation. The two formats of formal arbitrariness can be considered via the ensuring norms of clarity and temporal consideration. For instance, the law may not be worded clearly which would impede people from taking it into consideration in their lives or taking steps to alter their lifestyle. Or, alternatively, they could have not been passed by Parliament or fall under the ambit of the prerogative- making them subject to formal arbitrariness in a sense.
But which interpretation should be applied to Dicey? Firstly, the positive argument suggests that Dicey subscribed to the formalist conception of the rule of law as opposed to what has been described as 'the rule of the good law'. This is due to the manner in which Dicey utilises the term arbitrary in his discussion of the Bastille within 'Laws of the Constitution'. Dicey alludes to the Bastille as the 'visual sign of lawless power', he asserts that power there is arbitrary as it fails to rest in legality as in the English legal system. He thus heralds the English system as the better of the two. He also spends two pages lamenting over how Voltaire was twice sent to the Bastille on royal or aristocratic whims. He states that the English legal system may impose harsh laws, but it is the legality of the system which must be merited, as it prevents individuals from being incarcerated and having their freedom impinged upon without proper reason which has been established in the proper manner and written clearly in law. In this sense, it is clear to see why many argue that the use of the word 'arbitrary' denotes the formalist conception. However, it could be argued that the term arbitrary does depict a criterium by which laws can be decided to be 'good' or 'bad' as there is no criterion as to how the sense of arbitrariness was to be determined and identified with. Dicey had strong political views as is widely known, at no point is it stated that he intended these to be utilised to investigate whether a law fulfils meets the criteria of the rule of law, in this sense the need for an impartial judiciary, for clear laws and rules, for the correct mechanisms to be followed could be considered as subjectively arbitrary.
2. Dicey's second principle of the rule of law is that no man is above the law, regardless of their rank. This is evidently due to the belief that those in positions of power can utilise their authority to constrain the liberty of others for their own benefit. Dicey was criticised for his fatal misunderstanding of the French system of 'droit administratif' and for underestimating the utilisation of the administrative system in England through specialist tribunal systems, not the ordinary courts as he indicated. The equality before law principle is one which is evidently formalist in its nature, as described by Marshall it does not 'imply any qualitative view about the sort of law to which we are all subject'. The way in which Dicey opposed any law which favoured government/state officials over normal citizens could be argued to be substantive, however, beyond this, Dicey does not touch upon the principle of being substantive at all. Regardless as to whether all laws are applied in the same way, and all individuals are equal before them it could be the case that there is laws which state that the crown is exempt from all law, or that policemen and state officials can have legal defences open to them which are not available to normal citizens.
If a substantive dimension were to be applied to this then it would mean that certain groups may be subject to different rules, it would require a heavy consideration as to whether applying a certain rule to one group was compatible with applying it identically to another. Issues of such complexity would invariably have some kind of political dimension to them. Dicey does not indicate that there is any substantive element which should be applied in this sense, nor did he attempt to grapple with how the substantive version would be applied in practice. Thus, it can be considered highly likely that the formalist version of the equality before law component is the correct one, as is suggested by Craig.
3. Dicey's final limb of his interpretation of the rule of law identified with the manner in which substantive rights come to be recognised in English law, this is via a process of common law development through judicial developments as opposed to the Bills of Rights which can be seen on the continent. It is argued that this is a more effective mechanism by which individuals can protect their freedoms as it means their rights are less easily eroded. Whether this be correct or not is irrelevant to the point. It may be the case that empirical study has identified that rights vested within constitutional doctrines have greater rigidity, for instance, the right to keep and bear arms in the American Constitution, and the fact that it has only been subject to 27 amendments is testament to this. However, Dicey's interpretation withstands as a formal interpretation of the rule of law.
