A majority of the general public agree that the rule of law is beneficial. However, there has been constant dispute on the definition of the rule of law. In this essay, I will cover a number of topics including what the rule of law is, the formal theory of the rule of law and the substantive theory of the rule of law. By the formal theory of the rule of law, I mean the manner in which the law is made, implemented and applied and by substantive theory of the rule of law, I mean the content of the law in addition to the aspects of the formal theory. At the end of this essay, I hope to show that having a favourable context is essential in the rule of law.
Vaguely, the rule of law is a theory that describes the condition of a legal system to be in good shape. This is illustrated by A.V. Dicey’s principles of the rule of law to determine whether a legal system is in good shape. With regards to A.V. Dicey’s statement, there should be equality before the law and excludes the idea of officials having exemption. Furthermore, he stressed the importance of individuals’ right being protected in the ordinary law ad legal system, and rights to have an unbiased trial. This ideological belief opposes the actions carried out by a state savage prosecution of section of its people. Moreover, this could be the result of unfair trails or biased judges and decision of the courts that has not undergone proper judicial review. In the case of R v Immigration Appeal Tribunal and another [2005] 2 All ER 165, Ca, Lord Philips argues that judges should be consistent with the rule of law and that there should be judicial scrutiny subjected to the law and decision of the courts. However, this definition is only regarded as a first step in explaining the meaning of the rule of law as stated by Lord Bingham. As for this essay, I will focus only on the formal and substantive approaches to the rule of law.
Firstly, the formal theory of law focuses mainly on how the law is made, the way it is presented, and the way it is applied. It is concerned with procedures. This terminology is well showcased in detailed laws that are duly enacted. Moreover, following Joseph Raz’s formal theory of the rule of law, the making of the law should only apply to things happening in the future, available to public, easy to access and understand. In J. Raz, “The rule of law and its virtue” [1977] 93 Law Quarterly Review 195,211 he argues that the rule of law need not be based on morality or the interest of those subjected to it, instead, it is a constitutional principle as part of the legal system. The rule of law should be designed to allow courts to decide their cases without the disturbance of others. As any outside disturbances that would affect the final decision, would in turn go against principles regarding fair legal procedures.
In addition, the formal theory does not believe suggests that the rule of law is about law’s context. As human rights and the rule of law are different by nature. Hence it would be more favorable to uphold these subjects by different standards. Joseph Raz believed this to be so as there we already have terms in place to describe whether the law is good or bad. Also, human rights already have theories and regulations in place to support it. Whereas, the formal features of the rule of law are not covered by any other principles currently in place. Additionally, he states that if the law is focused on context, the parliament would become a moral institution. In conclusion, with regards to the statement and the formal theory of the rule of law. It is safe to affirm that the statement is in fact observing the rule of law. Although a formal theorist may recognise that the law breaches certain fundamental human rights. They would argue that the law did so whilst upholding the rule of law.
On the contrary, although the substantive approach would agree with the procedural aspects of the rule of law. They would additionally require that law’s context to be good for in order for it to comply with the rule of law. In Lord Bingham’s substantive theory of the rule of law, it is explained that the law must not do or require things of us that will breach our human rights. He would argue that if a state were to savagely prosecute sections of its people, although it was subject of detailed laws duly enacted and scrupulously observed. This would have infringed important beliefs of human rights and therefore could not comply with the rule of law. In the case of R (on the application of Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another [2006] EWCA Civ 1279, it shows how the Court of Appeal’s perspective on the rule of law has shifted. The Court of Appeal acknowledges the understanding of the need for the rule of law to develop in regards with the Human Rights Act 1998 and to consider the proportionality of decisions made in compliance with the law. Thus, it would not justify violently conducted prosecutions as observing the rule of law.
Furthermore, the substantive theory demands the state must be able to rationalise the law and actions towards individuals with regards to the doctrine of the common law. This argument by T. R. S. Allan is will presented in the case of N. W. Barber, ‘Must legalistic conceptions of the rule of law have a social dimension?’ [2004] 17[4] Ratio Juris 474, 481-2. Where he assumes that the freedom of thought, speech and association are important to the law that a rule of law lacking these principles can be argues to be false. As this would be a breach of one’s right to freedom of speech. In the case which a court aggressively prosecutes an individual, it is hard to argue that they have respected one’s fundamental rights. In Sir Harry Wolf, ‘Droit public: English Style’ [1995] Public Law 56, 69. Sir Harry takes T. R. S. Allan’s argument a step further and argues that there should be limits that needs to be respected by democrats in order for the rule of law to be preserved. The limits in this case the human rights of an individual being fiercely prosecuted would have been breached.
In this essay regarding the rule of law, I have attempted to examine aspects of both the formal theory of law and the substantive theory of law. In summary, the formal theory is only concerned with the procedural aspects of the rule of law, whereas the substantive theory cares for both the procedural aspect and context of the law to decide whether. The rule of law is good or bad. Although there is still no clear-cut way to define to rule of law, the substantive theory has proven to be much more persuasive as to being a good rule of law. This is even more so following the enactment of the Human Rights Act in 1995, there is now more of an importance in preserving the human rights and dignity of an individual. Therefore, I have come to a conclusion that a state which savagely repressed or persecuted sections of its people could not possibly be regarded as observing the rule of law.