The rule of law

Introduction

The doctrine of the rule of law states what is essentially a political ideal, namely that government should be conducted according to law, rather than discretion.

Formal versions of the rule of law

One of the most famous statements of a formal version of the rule of law comes from AV Dicey, a leading Victorian commentator, who said that it requires

the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, [with the resulting exclusion of] the existence of arbitrariness … or even of wide discretionary authority on the part of the government. (The Law of the Constitution, first published in 1885.)

While Dicey’s version has an obvious and immediate appeal, on reflection it can be seen to be a substantial overstatement: the process of government inevitably requires the exercise of discretionary – and sometimes wide discretionary – authority. Nevertheless, Dicey was right to identify the dangers of discretionary powers, even though it would be impossible, in practical terms, to eliminate them. What really matters, therefore, is not that discretionary powers should be eliminated, but that:

whatever the limits which are imposed upon discretionary governmental powers, they must be identified by law;

there must be legal mechanisms for deciding whether government has exceeded those limits; and

the courts must be able to provide remedies when government has been shown to have exceeded those limits.

Furthermore, and even before the question of the extent and control of discretion arises,

laws must be made in accordance with the procedures laid down by the constitution.

Of course, it is implicit in what has just been said that those who advance purely formal versions of the rule of law exclude from the scope of the doctrine any concern with the content of the law, provided that any relevant formalities and restrictions have been observed. Thus an absolute dictatorship whose laws systematically differentiate between the rights of its subjects on the grounds of their race, sex, sexual orientation or religious beliefs could easily comply with the rule of law in a purely formal sense, while at the same time the content of its law could be seriously lacking (at any rate according to the generally prevailing standards of contemporary western democracies). It is this aspect of the matter which leads many political and legal theorists to prefer substantive versions of the doctrine.

Substantive versions of the rule of law

By way of contrast with their formal counterparts, substantive versions of the rule of law require more than mere compliance with the relevant formal criteria: they rely upon the idea of the rule of law for the additional purpose of providing the basis for certain substantive rights.

Obviously, substantive versions of the doctrine present problems which their formal counterparts do not encounter, since there may be sincere, legitimate and reasonable disagreements as to which substantive rights the law should recognise and uphold. For example, does allowing same-sex marriage represent a proper respect for individual autonomy by allowing people to make up their own minds as to what constitutes the good life? Or does it represent an insidious undermining of the traditional view of marriage as the union of one man and one woman, and thus indirectly undermine society itself by undermining one of its most important building blocks, namely the family?

While arguments such as these may be both interesting and important, once the doctrine of the rule of law becomes inextricably linked with the content of the law, there is clearly a danger that those who lose such arguments on particular issues will feel that the rule of law has let them down; and they may, therefore, become alienated from society as a whole.

How strict is the formal/substantive distinction?

Although the distinction between formal and substantive versions of the rule of law, as outlined above, appears to present a straightforward choice between two alternatives, it can be argued that a formal version may require rather more than mere compliance with formalities, without forfeiting its status as a formal version. The argument to this effect is that law must, in its very nature, be capable of guiding conduct; and therefore it follows that any version of the rule of law must have some substantive content. As a bare minimum, for example, legal acts performed by public bodies and officials should be guided by rules which are open, stable, clear and general, because laws which do not satisfy these criteria do not enable the people who are affected by them to know what they can and cannot do. (In other words, the nature of law itself means that even the most strictly formal version of the rule of law must implicitly contain some qualitative criteria and this means that they are not truly and exclusively formal in nature.)

On this view of the matter, therefore, the distinction between formal and substantive versions of the rule of law is more a matter of degree than a straight choice between two alternatives.

By way of an aside, this last comment illustrates a very important aspect of the way in which lawyers very often think. Many questions which appear to be capable of being asked (and answered) on a straightforward either/or basis cannot truly be dealt with on this basis because closer and more critical consideration reveals a spectrum of possibilities consisting of two extreme – and often very simple – positions, between which there is a range of much more subtle possibilities. It is, therefore, the task of the law – and, therefore, of lawyers – to classify these more subtle possibilities into categories which both reflect the realities of life in terms which can be proved, so that people – and, ultimately, the courts – can know how the law applies to specific cases.