Rule of Law: Formal and Substantive Versions

The rule of law means that government and all persons are subject to law, and that law must meet certain standards of fairness, clarity and non-arbitrariness. The core idea is the opposite of arbitrary power: the state may act only on the authority of law.

• Ancient roots: Aristotle ("it is better for the law to rule than any single citizen"); Magna Carta (1215); Sir Edward Coke (the King is under God and the law – Prohibitions del Roy, 1607; Dr. Bonham's Case, 1610).

• Related continental concept: Rechtsstaat (Germany), état de droit (France), the state governed by law, with limits on administration through legality.

• Rule of law ≠ rule by law: "rule by law" treats law as a mere instrument of rulers, even if oppressive; the rule of law constrains rulers themselves.

Dicey, Introduction to the Study of the Law of the Constitution (1885), identified three meanings:

1. Supremacy of regular law over arbitrary power – no person is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. It excludes wide discretionary powers of the government.

2. Equality before the law – all classes are subject to the ordinary law administered by the ordinary courts; officials are not above the law and have no special privileges. Dicey contrasted this with the French droit administratif (a separate system of administrative courts), which he thought gave officials special protection.

3. The constitution is the result of the ordinary law of the land – rights of individuals arise from judicial decisions in ordinary cases (in England, the predominance of the legal spirit), not from a written declaration of rights.

Leading English cases linked to Dicey's principles: Entick v Carrington (1765) – executive cannot act without legal authority; Wilkes v Wood (1763); Leach v Money; Liversidge v Anderson (1942) – the majority deferred to executive satisfaction while Lord Atkin's dissent is celebrated for upholding the rule of law; M v Home Office (1994) – ministers are subject to the courts' contempt jurisdiction; Re Factortame.

Criticisms of Dicey:

• He misunderstood droit administratif (it is in fact a system protecting citizens against the administration).

• Modern government needs delegated legislation, administrative discretion and tribunals, which contradict his first principle.

• Officials and the Crown had immunities (though reduced by the Crown Proceedings Act, 1947).

• Equality is not absolute; many persons (judges, diplomats, members of Parliament) have special immunities.

• Ignores social and economic inequality. Ivor Jennings (The Law and the Constitution) criticised Dicey's approach as being rooted in 19th century laissez-faire. W.A. Robson and Lord Hewart (The New Despotism, 1929) debated the growth of administrative power.

Formal theories look at the form, procedure and characteristics of law, not its moral content. A legal system can satisfy the formal rule of law even if the laws are unjust, provided they are general, public, prospective, clear and applied fairly.

Lon Fuller – The Morality of Law (1964): eight principles (the "inner morality of law"):

1. Generality – rules, not ad hoc decisions.

2. Promulgation – laws must be publicised.

3. Non-retroactivity – prospective laws.

4. Clarity – laws must be understandable.

5. Non-contradiction – no conflicting rules.

6. Possibility of compliance – no demand for the impossible.

7. Constancy through time – no frequent changes.

8. Congruence between declared rules and official action.

Fuller's eight failures are illustrated through the story of King Rex. Fuller argues these are a procedural natural law ("inner morality"), distinct from the "external morality" of law (the content). The Hart–Fuller debate (1958) concerned whether immoral Nazi-era laws are law at all.

Joseph Raz – "The Rule of Law and its Virtue" (1977): adopts a formal, positivist approach. Law must be capable of guiding conduct: prospective, open and clear; relatively stable; made under open, stable, clear and general rules; independence of the judiciary; principles of natural justice; courts have review power; courts easily accessible; discretion of crime-preventing agencies should not pervert the law. Raz said that the rule of law is "a virtue of law, not a moral virtue in itself" and compared it to the sharpness of a knife – it makes law efficient, whether for good or ill; it does not guarantee a just law. He believed rule of law should not be conflated with democracy, justice, equality or human rights.

F.A. Hayek – The Road to Serfdom (1944) and The Constitution of Liberty (1960): rule of law means that the government in all its actions is bound by rules fixed and announced beforehand, so that one can foresee how the authority will use its coercive powers. Strongly opposed to the planning state and discretionary powers; a formal approach linked to economic liberalism.

Other formal approaches: Albert Venn Dicey (largely formal), John Rawls (a rule-of-law account in A Theory of Justice as part of formal justice), Jeremy Waldron (procedural features, such as hearings and reasoned decisions).

Advantages of formal conceptions: clarity, neutrality, wide acceptance, and a minimal, objective standard for all legal systems.

Criticism: a tyranny could comply (the rule of law in a "thin" sense can coexist with oppressive laws, like apartheid legislation).

Substantive theories include moral and political values – especially fundamental rights, democracy, equality and dignity – within the rule of law itself. A law that violates fundamental rights fails the rule of law.

• Ronald Dworkin (A Matter of Principle, 1985): distinguishes the "rule-book" conception (formal: legal rules published, citizens subject to them) from the "rights" conception (substantive: the rule of law presupposes moral rights of citizens against the state, enforceable in courts). He argued that the rights conception requires judges to interpret law in the light of political morality.

• T.R.S. Allan (Law, Liberty and Justice; Constitutional Justice): the rule of law is bound up with equality, fairness and dignity; legal reasoning embodies a common-law constitutionalism.

• Lord Bingham (The Rule of Law, 2010): offered eight sub-rules: (1) the law must be accessible, intelligible, clear and predictable; (2) legal rights should be resolved by law, not discretion; (3) equality before the law; (4) powers must be exercised lawfully, fairly and for the purpose conferred; (5) protection of fundamental human rights; (6) means for resolving disputes without prohibitive cost; (7) fair trial; (8) compliance with obligations in international law.

• Declaration of Delhi (1959), International Commission of Jurists (ICJ) – a dynamic and substantive concept: the rule of law should be used to safeguard and advance the civil and political rights of the individual and to establish social, economic, educational and cultural conditions in which the individual's legitimate aspirations and dignity may be realised. It emphasised an independent judiciary and legal profession. This is a classic exam question as it is linked to India and to the Delhi Congress of Jurists, 1959.

• Paul Craig ("Formal and Substantive Conceptions of the Rule of Law", 1997) provided the now-standard analytical distinction. Brian Tamanaha (On the Rule of Law, 2004) proposed a spectrum from thin (rule by law, formal legality) through thicker (democracy and individual rights) to thickest (social welfare and substantive equality).

Criticisms of substantive conceptions: they merge the rule of law with a general theory of justice, making it vague and contested; any good political value could be said to be part of it.

India: The Preamble, Article 14 (equality before law and equal protection – the Supreme Court in E.P. Royappa v State of Tamil Nadu (1974) treated arbitrariness as antithetical to equality), Article 21 (due process after Maneka Gandhi v Union of India, 1978), Article 32 and 226 (judicial review), and Article 13 incorporate the rule of law in a substantive manner. Kesavananda Bharati (1973) and Indira Nehru Gandhi v Raj Narain (1975) held the rule of law to be part of the basic structure. ADM Jabalpur v Shivkant Shukla (1976) (habeas corpus case during the Emergency) represented a failure of the rule of law and was expressly overruled by the nine-judge bench in K.S. Puttaswamy v Union of India (2017). Rule of law as a reasoned and fair procedure: Maneka Gandhi, Olga Tellis, Vishaka. Indian courts follow a substantive version of the rule of law.

UK: Rule of law is an unwritten constitutional principle. Constitutional Reform Act 2005, section 1 says the Act does not adversely affect "the existing constitutional principle of the rule of law". R (Jackson) v Attorney General (2005) – Lord Steyn and Lord Hope's obiter remarks on whether the rule of law is the ultimate controlling factor over parliamentary sovereignty. R (Miller) v Prime Minister (2019) also upheld constitutional principles.

USA: The rule of law is embodied in the Due Process Clauses (Fifth and Fourteenth Amendments), equal protection, judicial review (Marbury v Madison, 1803), and the principle of a "government of laws and not of men" (John Adams, Massachusetts Constitution of 1780). American constitutionalism treats the rule of law as having both formal and substantive aspects (substantive due process).