Formal and Substantive Conceptions of the Rule of Law y y The central theme of the article is the distinction between

formal and substantive meanings of the rule of law. Formal conceptions address the manner in which the law was promulgated, the clarity of the ensuing norm; and the temporal dimension of the enacted norm (was it prospective or retrospective, etc.) Those who espouse substantive conceptions accept that the rule of law has the above mentioned formal attributes. However, they wish to take the doctrine further. Certain substantive rights are said to be based on or derived from the rule of law. The concept is used as the foundation for these rights, which are then used to distinguish between ³good´ laws which comply with suck rights and ³bad´ laws which do not

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1. The Formal Conceptions of the Rule of Law A. Joseph Raz y Raz¶s explanation of why the formal conception should bear this meaning; µIf the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that good should triumph. The rule of law is a political ideal which a legal system nay lack or possess to a greater or lesser degree. That much is common ground. It is also to be insisted that hte rule of law is just one of the virtues by which a legal system may be judged and by which is is to be judged. It is not to be confused with democracy, justice, equality (b efore the law or otherwise), human rights of any kind or respect for persons or for the dignity of man.¶ Essentially, he feels that if the rule of law is taken to encompass the necessity for ³good laws´ in this sense then the concept ceases to have any useful independent function for the following reason; these are issues which have been tackled by political theory for ages. To bring these issues within the rubric of the RoL would therefore have the effect of robbing this concept of any function independent of such political theories. Laws would be condemned or upheld as being in conformity, with or contrary to, the rule of law in this substantive sense when the condemnation or praise would simply be reflective of attachment to one particular political theory.

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What then is the proper remit of the rule of law viewed in this formal manner? y y y Laws should be passed in the correct legal manner and; The laws thus promulgated should be capable of guiding one¶s conduct in order that one can plan one¶s life It is from this that Raz deduces a number of more specific attributes that laws should have to be in compliance with the rule of law. All are related to the idea of enabling individuals to plan their lives o Laws should be prospective, not retrospective o They should be relatively stable o That particular laws should be guided by open, general and clear rules o That there should be an independent judiciary o That there should be access to the courts o That the discretion which law enforcement agencies possess should not be allowed to undermine the purposes of the relevant legal rules. A final point that Raz emphasises is that it is only one virtue of a legal system and may have to be sacrificed to attain other desired ends. Thus if the only way to achieve a desired goal is

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to have more discretionary provisions, such a modification to the rule of law in this manner is not somehow forbidden. Given that it is only one virtue of a legal system it should not prevent the attainment of other virtues valued by that system. B. Dicey Dicey¶s first limb of the rule of law was that: µ... no man is punishable or can be lawfully 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 is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.¶ y y It is clear that the first part of this is formalistic (established in the ordinary legal manner...) As for the second part, it is possible for the word arbitrary to have substantive comment. However, there are two arguments, one positive and one negative which point to the fact that Dicey was using the term in a formalistic sense o The positive argument is that in the Law of the Constitution, Diceyis under no illusions that our laws might not be harsh. However, in contrasting the English system to continental ones, he felt that England was not subject to arbitrary power in the formalistic sense and this was a better system o The negative argument is that if Dicey had intended the term arbitrary to bear a substantive connotation, then he provided absolutely no creiterion as to how this sense of arbitrariness was to be determined.

The second principle of the rule of law contains equality: µWe mean... when we speak of the µrule of law¶ as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.¶ y y y Again, the weight of the evidence indicates that Dicey was thinking in formal rather than substantive terms when formulating his ideas on equality Dicey¶s formulation is concerned primarily with formal access to the courts not with the nature of the rules which individuals will find when they get there. A substantive conception of equality would require the articulation of principles through which the courts would then determine whether the application of one rule to Group A was compatible with the application of a different rule to Group B.

Dicey¶s third limb is that: µWe may say that the constitution is pervaded by the rule of law on the ground that our general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the scrutiny (such as it is) given to the rights of individuals appears to result from the general principles of the constitution¶ y Essentially, Dicey argues that the protection of rights trough Bills of Rights is ineffective, since such constitutional documents could so easily be abrogated at the stroke of a pen. Under the common law, where individual rights were the result of numerous judicial decisions indicating when the individual was at liberty to speak freely etc..., it would be considerably more difficult for some authoritarian regime to sweep these rights aside.

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Again, this limb is no more substantive than the first two. It no more demands the existence of certain specific substantive rights than do the earlier limbs of his formulation.

C. Unger y Essentially, Unger argues both that the formal conception of the rule of law was always a mask for substantive inequalities in power, and that in the modern day this formal conception is in any event increasingly unattainable. In relation to the rule of law being a mask for the substantive inequalities in power, for Unger it achieved this goal by making it appear that power was impersonal. Unger¶s contention was that this legitimating function performed by the RoL was a sham for two reasons o It functions on the basis that most power was concentrated in government yet he argues that in practical terms, considerable power lay in other places, including the workplace, the family etc... o He claims that the assumption behind the RoL rhetoric was that power could be effectively constrained by rules as if rules were general and impartially applied, it would be difficult for a particular class to turn them to personal advantage. He contends that this assumption was not sustainable. Non-withstanding these problems, the RoL oculd still appear to be a legitimating device in Unger¶s µliberal society¶. Not so in his µpost-liberal¶ society. (with greater government influence in the economy and in the regulation of society) Because of it¶s nature, legal reasoning ceases to be formal and becomes more purposive. These characterists of a post-liberal society are said by Unger to have profound implications for the traditional attributes of the rule of law. Generality is undermined (complex problems need more than general rules), autonomy is undermined (courts need to apply vaguer statutes)

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There are three points which may be of help in locating this thesis within the more general structure of this article. 1. His view is not markedly different from Raz or Dicey 2. To claim that any legitimating function performed by the rule of law within liberal society was undermined because of substantive power inequalities is to condemn the rule of law for nto combating issues which it, as a legal concept, never claimed to be redressing. 3. In relation to his point about the decline of the RoL in his post-liberal society there are 2 points a. In empirical terms, is the problem that serious? How many statutes take the opentextured vague forms he described? How often does the judiciary make judgments said to replicate the legislature b. In relation to Raz¶s emphasis that the rule of law is but one virtue that legal system should possess and that it can give way for others, perhaps that is all that is happening here. 2. The Substantive Conception of the Rule of Law A. Dworkin y It is central to this thesis that, subject to questions of fit, the courts should be deciding legal questions according to the best theory of justice. On this view broader questions of political theory are central to the resolution of what rights people currently possess. Given this theory, it would be odd to conceive of the rule of law in purely formal terms. We can indeed see this by considering Dworkins¶s own discussions. He distinguishes between two different conceptions of the rule of law

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The rule book conception as he terms it is in effect a version of the formal rule of law discussed above. o The second he terms the rights conception and defines it in the following manner: µIt assumes that 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 recognised in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions of the familiar type, so far as this is practicable. The rule of law conception is the ideal of rule by an accurate public conception of individual rights. It does not distinguish, as the rule book conception does, between the rule of law and substantive justice; on the contrary, it requires, as part of the ideal of law, that the rules in the book capture and enforce moral rights.¶ Proponents of a right based or substantive conception of the rule of law will have regard to the values enshrined in the formal conception of the rule of law for two reasons. o Such values would feature in any serious theory of justice o These values will be of relevance when answering the key question posed by advocates of a rights based conception of the rule of law: ³whether the plaintiff has a moral right to receive, in court, what he or she or it demands.´ Three conclusions can be drawn from the analysis so far o On Dworkin¶s theory, there is no place for a separate concept of the rule of law as such at all; it simply captures the theory of law and adjudication which he espouses o While Dworkin would continue to have regard to the formal rule of law values within his theory, these values would not be separately demarcated as compromising or constituting the µrule of law¶. They would simply take their place within the theory of law and adjudication which he espouses in the manner described above o The substantive view demands that the particular conception of these broader concepts such as liberty, equality and the like be revealed. o

It is worth noting that Dworkin¶s own argument serves to emphasise that the very meaning of the rule of law will be linked with one¶s definition of law itself and with the proper adjudicative rule of the judge. A positivist is likely to subscribe to the formal sense of the rule of law, and to keep this distinct from the content of particular laws. A rights based analysis of the Dworkin kind is diametrically opposed to this dichotomy between form and substance. The content of laws will be evaluated in order to determine whether they are compatible with the moral rights which individuals possess. On this view the rule of law is nothing more or less than a synonym for a rights based theory of law and adjudication. B. Sir John Laws y In his view, the rule of law is held to encompass an attachment to freedom, certainty and fairness. The first of these elements is the substantive component of the rule of law, while the second and the third bring in the more traditional attributes of the formal rule of law. There are two related comments on this analysis; First, the fact that the protection of fundamental rights requires us to specify what those rights are, and this necessitates the articulation of some background political theory, is surely correct. This he does however his theory is controversial and has been criticised. Secondly, the role to be played by the rule of law within Sir John Law¶ argument can, however, be questioned. With a rights based analysis, the phrase the rule of law ceases to have a function independent of the rights based theory of law and adjudication. Does it then matter than an advocate of such a rights based conception of law continues to employ the rule of law within his analysis? It is acceptable provide one understands how the concept is being used. In a rights based theory, it has the following connotation: that a theory of justice is integral to deciding what

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rights individuals presently have, and that this therefore necessitates the articulation of what that theory of justice actually is. (which in their minds is the substantive conception of the rule of law) (read again)

C. Allan y The nature of his reasoning may be described as follows. He recognises the dangers of subscribing to a substantive conception of the rule of law which may have been articulated by Raz. Nonetheless he is firmly of the view that such a conception is both correct in principle and of most use to those who are engaged in constitutional theory in the context of the British constitution. Four connected arguments can be discerned in his analysis First, formal conceptions of the rule of law are themselves based upon substantive foundations, namely ideas of moral autonomy and the respect for the dichotomy between form and substance o The fact that this is so however does not serve to justify a conclusion that the distinction between formal and substantive conceptions of the rule of law is untenable. Legal systems have always distinguished between formal/procedural and substantive norms notwithstanding the fact that the former may be underpinned by substantive issues. Secondly, in normative terms, adjudication, and in particular common law adjudication, involves the application of principles as well as rules. The application of such principles will often require the court to have recourse to considerations of substantive justice or fairness which go beyond the formal conception of the rule of law Thirdly, in descriptive terms, the common law courts in the UK do in fact reason in this manner. o The sample is far too small to make it possible to draw any meaningful conclusions from this o Further it is worth noting that some positivists and rule book theorists notably Raz agree they should do this. Raz feels that where there is a hole in the law, it is essentially for the courts to act as legislators taking into account relevant factors. Finally, Allan draws explicitly on Dworkin to support his thesis. o Despite this, Allan appears to believe that the rule of law has some independent value as a constitutional concept.

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3. A Middle Way A. Raz Recently, Raz has turned his attention upon the role of the rule of law in Britain rather than universally. According to Raz, the core idea is the µprincipled faithful application of the law¶. The core of the thesis is to be found in this notion of principled adjudication. It requires that the courts make decisions which are reasoned and public. The real nub of the idea is captured below: ³In insisting that judicial decisions should be not only faithful but also principled, I am suggesting that the function of the rule of law is to facilitate the integration of particular pieces of legislation with the underlying doctrines of the legal system... A particular reform of police powers to search for prohibited drugs... should be applied in a manner which is both faithful to the legislative purpose and principled in integrating it with traditional doctrines of the liberties of the citizen.´ This aspect of the judicial function is justified in party by the need to ensure that there is a coherence of purpose within the law. It is also held to be justified in order to mix the fuits of long established

traditions (which the courts should have the role as guardians of) with the urgencies of short-term exigencies (which legislatures can and are susceptible to) As for civil rights in this vision, Raz says that the protection of such rights is partly presupposed and partly implied in the preceding analysis. Implied as it is based on a democracy and a society cannot be democratic without such rights. B. Jowell He perceives the rule of law as a principle of institutional morality and as a constraint on the uninhibited exercise of government power and argues that it does possess a substantive aspect. This aspect is manifest in the judiciary¶s willingness to strike down agency action if it is unreasonable, arbitrary or capricious. There are however two difficulties in holding the middle ground 1. The principles of JR are not self-executing. A judicial decision holding that administrative action should be struck because it is unreasonable or capricious will often involve the identification of various interests and the assignment of normative weight to them. Given that this is so is is difficult to perform this exercise of normative evaluation without explicitly or implicitly relying on some background conception of justice. 2. If the argument is based on the need to constrain the uninhibited exercise of government power, and the administrative law principles of jr are regarded as serving this face of the rule of law, then why should the µlimits of the rule of law¶ (as described by Jowell) be set so as to exclude constitutional constraints designed to serve the same end? (tools concerning rights such as expression, equality and the like) Once constitutional constraints on governmental power are included it becomes even more difficult to avoid the taxing issues of justice and political theory adverted to above. 4. Conclusion First, the rule of law is rightly regarded as a central principle of constitutional governance. It is therefore all the more important that we should be as clear as possible about its meaning. Much of our understanding of it however is dependant on what one understands by the term µlaw¶. This is confirmed above since what ultimately divides the formalist and substantive conceptions of the rule of law is disagreement about the way in which we indentify legal norms. Secondly, it should be noted that both Raz and Dworkin agree on a central issue; the adoption of a fully substantive conception of the rule of law has the consequence of robbing the concept of any function which is independent of the theory of justice which imbues such an account of law. Their fundamental disagreement concerns the very nature of law and the rule of courts in adjudication. Thirdly, it is of course open to anyone to choose between the views above. It is nonetheless important to understand the consequences of adopting a particular position on this matter. The phrase µthe rule of law¶ has a force of its own. To criticise governmental action as contrary to the rule of law immediately casts it in a bad light and intellectual honesty requires that such criticism is made clear and it also demands clarity as to the particular theory of justice which informs the critique.

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