The key principle, “the law must afford adequate

The rule of
law is one of the fundamental doctrines of the UK’s constitution yet has been the
topic of hefty debate. It’s there to explain the legitimacy of laws, however, there
is not a set definition. It depends on whether the substantive theory or the
formal theory is preferred. The formal theory is concerned with procedures,
meaning the way law is made, implemented and applied. Substantive theory is also
concerned with procedures of the legal system but additionally believe that the
law’s content needs to be good to comply with the rule of law. The quotation
refers to a distinct dislike for the formal theory, mainly taking issue with
the lack of morality, therefore placing importance on the substantive theory.
In my opinion, the substantive theory is inadequate and I would rather consider
a formal theorist’s approach. I shall first assess the substantive theory.
Second, I shall argue reasons against substantive theory and give arguments for
the formative theory. Lastly, I shall examine how UK courts have defined and
prosecuted the rule of law.

 

According to
A.V Dicey, the following are principles of a legal system in good shape: “no
punishment except those who breach the law, the law should not be applied
arbitrarily or retrospectively and law should be made according to established
procedure”1.

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Substantive
theory of the rule of law is concerned with procedural operations, but places
importance on the content of the law being morally good for there to be a
successful legal system, as supported by Lon Fuller. His evaluation adheres to ethical and good content, declaring the law
needs to have in-house morality to have the right to be called a legal system.
He concludes that a regime which merely commands authority would only be a
governmental system2. Simply, the rule
of law must uphold human rights, as shown by Lord
Bingham’s analysis of substantive theory. His ideas overlap formal views put
forth by Raz besides one key principle, “the law must afford adequate
protection of fundamental human rights3”.

Just like
Fuller, Lord Bingham concludes that for law’s content to be good it must not
infringe upon human rights, in agreement with the quotation in question.

 

Formal
theorists oppose the belief that human rights are included in the rule of law. For there to be government under the law, laws must
adhere to certain procedural requirements. Subjects should be guided so that
each knows their position in the state. Joseph Raz, an advocate
of the formal approach, summarizes the rule of law:

“the law should conform to standards
designed to enable it effectively direct action” and “the rule of law is
designed to ensure the legal machinery of enforcing the law should not deprive
it of its ability to guide through distorted enforcement4”.

Raz proposed to achieve solid certainty laws should be “prospective,
clear, adjudged by independent judiciary and must allow citizens access to the
courts”5. A reason to favour the formal view
is predictability, stability and certainty.

When
the rule of law is violated, there are two subsequent harms: frustrated
expectations and uncertainty. Uncertainty happens when the rules, or how those
rules are applied, aren’t known. This would make it difficult for subjects to
make plans, because it is unknown how those plans will be upheld or thwarted by
the law. The formal rule of law negotiates that uncertainty as citizens have confidence
with how their lives interact with the law. Frustrated expectations mean the
law being improperly applied. These are genuine harms that come from breaching
formal principles. Thus, in adding human rights to the rule of law, we risk
obscuring these lesser harms.

The
rule of law is a virtue a legal system may possess and it must not be confused
with democracy or human rights. Just because human rights are not part of the
rule of law, does not necessarily mean people will forget they exist. The
formal features aren’t covered by other principles. There’s no constitutional
slogan that demands ‘certain, stable and clear’ laws. Public and governmental
agencies acknowledge their existence and importance, but that doesn’t mean everything
should be constricted under the same heading. The rule of law and human rights
are two separate standards. Like Raz, I would not agree that the type of
wrongness entailed in a human rights abuse is the type of wrongness that
undermines the rule of law. It’s possible to make more nuanced judgements if the
formal perspective is upheld and human rights are kept separate.

 

Since
at least 1607, the courts have upheld the rule of law. In instances where
individuals have taken actions against executive or public courts, the courts
have been able to deliberate the operation of the rule of law. Both theorists
agree that procedures the courts follow are an important part of the rule of
law. If courts aren’t fair, accessible etcetera, the rule of law will be
undermined. Courts are responsible for defending the rule of law against
threats from other institutions. The courts have endorsed formal rules, for
instance, they will strike down
executive action that breaches formal rule of law principles. An example is M V
Home Office6,
in which it was held that a Minister of the Crown can be subject to a court
order just like everybody else. This shows a breach to the formal principle
that all are equal to the rule of the land, even the government. If possible,
judges will interpret an Act of parliament with rule of law principles. This
happened in the case of Anisminic v Foreign Compensation Commission7
in which an Act of parliament is trying to undermine the rule of law; a statute
tried to ‘oust’ the possibility of judicial review, but access to the courts is
one of the key values. Lord Reid held: “It’s well established that trying to
prevent jurisdiction of the court must be greatly constricted. If it’s capable
of having two meanings, the one which preserves ordinary jurisdiction of the
court should be taken8”. In the
cases Entick v Carrington9 and M v
Home Office, years apart, both make it clear the executive is subject to the
law and that the state is not exempt from the law. To this end, actions of
state and public are susceptible to judicial review. The case of A v Secretary
for the Home Department is evidence that UK courts’ interpretation of the rule
of law is the right to a far trail. Traditionally, courts have been constricted
to procedural prosperity, legality, rationality etcetera rather than content of
the decision. However, in cases that deal with human right matters, such as R v
Secretary of State for Foreign Affairs, the Court of Appeal believed the role
had expanded in human right cases to consider reasonableness and
proportionality, the substantive virtue.

 

To
conclude, in matters relating to public policy, as opposed to human rights, judicial
roles remain to supervise legality of executive action, in keeping with the formal
school of thought. This is an established view of the judicial role, one that
judges will feel more comfortable in fulfilling.

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