It would not be very difficult to show that the phrase ‘the rule of law’ has become meaningless thanks to ideological
abuse and general over-use.
- Judith Shklar, Political Thought and Political Thinkers (University of Chicago Press, 1998) 21
Formal Conception of the Rule of Law
Basic principle of Legality
The rule of law requires that law is enacted in a certain prescribed way.
Simply that for something to be regarded as law, it has be made in the way that the legal system recognises as law…
e.g. for an Act of Parliament to be created, it has to be approved by the House of Commons, House of Lords, with Royal
Assent given by the monarch.
Note: Parliament Acts 1911 to 1949 allow in certain circumstances something to become law without the approval of
the House of Lords
enduring values of regularity and restraint, embodied in the slogan of ‘a government of laws, not… men’
- Hutchinson and Monahan
Uncontroversial.
Any legal system needs to be able to identify the laws…
But, would allow for laws to be of any sort;
Slavery; torture; random imprisonment; seizure of bank accounts…
[The rule of law] says nothing about how the law is to made: by tyrants, democratic majorities, or any other way. It says
nothing about fundamental rights, about equality, or justice. A non-democratic legal system, based upon denial of
human rights, on extensive poverty, on racial segregation, sexual inequalities and religious persecution may, in principle,
conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western
democracies.
- Joseph Raz, The Authority of Law (1979) 211
Rule of law as a knife
Again, says nothing about the content of those laws…
Allen
This form of the rule of law is morally neutral;
‘an efficient instrument for good purposes or wicked’.
Just like a knife
Going Further - procedural Aspect to the Rule of Law
That can’t be it…
Formal view…
Joseph Raz
‘the law should conform to standards designed to enable it to effectively guide action’. This means that the law should
be publicly and clearly stated;
not have retroactive effect;
not change too often.
Also means, access to independent courts to arbitrate on disputes;
if not courts, then other factors, political, social, financial would harm the certainty of the law
Substantive concepts of the rule of law
Is it morally neutral?
, The idea that laws should be certain, and not of retroactive effect?
In a sense like a referee - neutral, applies the ‘laws’ come what may.
So that people can plan their behaviour?
So that people can plan their behaviour?
This advances the idea of
human autonomy;
dignity?
So why not accept other morals as part of the rule of law;
banning torture;
equality;
human rights?
More like a “coach”, that you want laws to express certain values, “act in a certain way?”
Trevor Allan
Trevor Allan
The problem with the rule of law is that there are substantive values required for the rule of law to be worthwhile.
Equality of the law.
Dicey’s rule of law, however, merely promotes equality before the law.
As Rawls points out, this still permits the law itself to be discriminatory.
"under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the
known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of
government will not be used deliberately to frustrate his efforts."
- Friedrick Hayek
A more substantive concept of the rule of law?
Freedom of expression?
Non-discrimination on the grounds of race; religion or gender;
Is it easy to distinguish procedure from substance?
Retroactive laws; unfair to punish someone for committing an offence when at the time it was not an offence.
Should everyone have
the right to strike;
the right to a high standard of living?
Disagreeing with the substantive concept of the rule of law, is merely saying that the law should not be the way in which
these things should be determined.
Balance of the role of law and the role of politics within the constitution/political system
The rule of law and the UK
Equality before the law
Dicey’s orthodox position…
“the absolute supremacy of regular law…as opposed to the influence of arbitrary power [and] … even of wide
discretionary authority on the part of the government”
“no man is above the law”
“the general principles of the constitution (as for example, the right of personal liberty, or the right of public meeting
are with us as a result of judicial decisions”
Entick v Carrington
Entrick v Carrington [1765] EWHC KB J98
The King’s Messengers searched John Entick’s home for ‘seditious papers”.
Home Secretary produced a warrant.
abuse and general over-use.
- Judith Shklar, Political Thought and Political Thinkers (University of Chicago Press, 1998) 21
Formal Conception of the Rule of Law
Basic principle of Legality
The rule of law requires that law is enacted in a certain prescribed way.
Simply that for something to be regarded as law, it has be made in the way that the legal system recognises as law…
e.g. for an Act of Parliament to be created, it has to be approved by the House of Commons, House of Lords, with Royal
Assent given by the monarch.
Note: Parliament Acts 1911 to 1949 allow in certain circumstances something to become law without the approval of
the House of Lords
enduring values of regularity and restraint, embodied in the slogan of ‘a government of laws, not… men’
- Hutchinson and Monahan
Uncontroversial.
Any legal system needs to be able to identify the laws…
But, would allow for laws to be of any sort;
Slavery; torture; random imprisonment; seizure of bank accounts…
[The rule of law] says nothing about how the law is to made: by tyrants, democratic majorities, or any other way. It says
nothing about fundamental rights, about equality, or justice. A non-democratic legal system, based upon denial of
human rights, on extensive poverty, on racial segregation, sexual inequalities and religious persecution may, in principle,
conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western
democracies.
- Joseph Raz, The Authority of Law (1979) 211
Rule of law as a knife
Again, says nothing about the content of those laws…
Allen
This form of the rule of law is morally neutral;
‘an efficient instrument for good purposes or wicked’.
Just like a knife
Going Further - procedural Aspect to the Rule of Law
That can’t be it…
Formal view…
Joseph Raz
‘the law should conform to standards designed to enable it to effectively guide action’. This means that the law should
be publicly and clearly stated;
not have retroactive effect;
not change too often.
Also means, access to independent courts to arbitrate on disputes;
if not courts, then other factors, political, social, financial would harm the certainty of the law
Substantive concepts of the rule of law
Is it morally neutral?
, The idea that laws should be certain, and not of retroactive effect?
In a sense like a referee - neutral, applies the ‘laws’ come what may.
So that people can plan their behaviour?
So that people can plan their behaviour?
This advances the idea of
human autonomy;
dignity?
So why not accept other morals as part of the rule of law;
banning torture;
equality;
human rights?
More like a “coach”, that you want laws to express certain values, “act in a certain way?”
Trevor Allan
Trevor Allan
The problem with the rule of law is that there are substantive values required for the rule of law to be worthwhile.
Equality of the law.
Dicey’s rule of law, however, merely promotes equality before the law.
As Rawls points out, this still permits the law itself to be discriminatory.
"under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the
known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of
government will not be used deliberately to frustrate his efforts."
- Friedrick Hayek
A more substantive concept of the rule of law?
Freedom of expression?
Non-discrimination on the grounds of race; religion or gender;
Is it easy to distinguish procedure from substance?
Retroactive laws; unfair to punish someone for committing an offence when at the time it was not an offence.
Should everyone have
the right to strike;
the right to a high standard of living?
Disagreeing with the substantive concept of the rule of law, is merely saying that the law should not be the way in which
these things should be determined.
Balance of the role of law and the role of politics within the constitution/political system
The rule of law and the UK
Equality before the law
Dicey’s orthodox position…
“the absolute supremacy of regular law…as opposed to the influence of arbitrary power [and] … even of wide
discretionary authority on the part of the government”
“no man is above the law”
“the general principles of the constitution (as for example, the right of personal liberty, or the right of public meeting
are with us as a result of judicial decisions”
Entick v Carrington
Entrick v Carrington [1765] EWHC KB J98
The King’s Messengers searched John Entick’s home for ‘seditious papers”.
Home Secretary produced a warrant.
