The Rule of Law
Defining the rule of law
- Rather than a country’s constitutional and governmental system being run by arbitrary decisions
and the personal preferences of those in power, it should be run on accepted law and established
legal principle, applicable to all
- A.V. Dicey coined expression, but the earliest idea originated in Ancient Greece in the 5th
century BCE, with Aristotle believing that it is better to be ruled by the law than a single person,
ensuring that even people who preserve the law are expected to follow it
- Rule of law has become an important principle in many constitutions
• e.g. Article 2 of the Norwegian Constitution — ‘this Constitution shall ensure democracy, a state
based on the rule of law and human rights’
Conceptualising the rule of law
- Formal conceptions of the rule of law
• Third conception to rule of law that states the principle means that the law must be followed as
written
• This conception may be problematic because it does not focus on ensuring the law is moral, or
how the law is enacted, meaning that even dictatorships acknowledged by courts would be seen
as upholding the rule of law, according to TRS Allan
• From formal conception, rule of law requires the law not only to be followed, but also to provide
a clear framework which sets out fixed rules on how the government should operate
• Content of law not relevant, according to Paul P Craig
• Formal conception does not consider other values that may be deemed essential in a constitutional
system, like justice or protecting individual rights
• Focusing strictly on procedural rules causes these values to be disregarded, as they are
considered separate to rule of law. This means a system failing to uphold individual liberty
would still be viewed as being consistent with rule of law.
• This conception means rule of law can be used for good or bad purposes
• However, in practice, the term is often used to mean justice and fairness, as when Tony Blair
described it as freedom and democracy
• Tom Bingham agrees that the centre idea for rule of law is that everyone should be bound by and
entitled to the benefits of laws publicly made, while also highlighting the need for a fair society
that respects fundamental rights
- Substantive conceptions of the rule of law
• Builds on formal conception, while also acknowledging content of the law, arguing that it should
include certain moral content
• Allan’s explanation focuses on the need to commit to proper procedures, highlighting that formal
conceptions are founded upon substantive values, believing that committing to precedent ensures
cases are treated alike, resulting in equality
• Dworkin’s explanation of theory focuses on individual’s rights
The rule of law in the UK
- s.1 Constitutional Reform Act 2005 shows that Parliament acknowledges existence of rule of law
and its importance in UK Constitution, although no definition is given
• R (Privacy International) v Investigatory Powers Tribunal [2019] — discusses lack of definition
of rule of law, but agrees with Lord Bingham that it is up to courts to decide its contents and
limits
Defining the rule of law
- Rather than a country’s constitutional and governmental system being run by arbitrary decisions
and the personal preferences of those in power, it should be run on accepted law and established
legal principle, applicable to all
- A.V. Dicey coined expression, but the earliest idea originated in Ancient Greece in the 5th
century BCE, with Aristotle believing that it is better to be ruled by the law than a single person,
ensuring that even people who preserve the law are expected to follow it
- Rule of law has become an important principle in many constitutions
• e.g. Article 2 of the Norwegian Constitution — ‘this Constitution shall ensure democracy, a state
based on the rule of law and human rights’
Conceptualising the rule of law
- Formal conceptions of the rule of law
• Third conception to rule of law that states the principle means that the law must be followed as
written
• This conception may be problematic because it does not focus on ensuring the law is moral, or
how the law is enacted, meaning that even dictatorships acknowledged by courts would be seen
as upholding the rule of law, according to TRS Allan
• From formal conception, rule of law requires the law not only to be followed, but also to provide
a clear framework which sets out fixed rules on how the government should operate
• Content of law not relevant, according to Paul P Craig
• Formal conception does not consider other values that may be deemed essential in a constitutional
system, like justice or protecting individual rights
• Focusing strictly on procedural rules causes these values to be disregarded, as they are
considered separate to rule of law. This means a system failing to uphold individual liberty
would still be viewed as being consistent with rule of law.
• This conception means rule of law can be used for good or bad purposes
• However, in practice, the term is often used to mean justice and fairness, as when Tony Blair
described it as freedom and democracy
• Tom Bingham agrees that the centre idea for rule of law is that everyone should be bound by and
entitled to the benefits of laws publicly made, while also highlighting the need for a fair society
that respects fundamental rights
- Substantive conceptions of the rule of law
• Builds on formal conception, while also acknowledging content of the law, arguing that it should
include certain moral content
• Allan’s explanation focuses on the need to commit to proper procedures, highlighting that formal
conceptions are founded upon substantive values, believing that committing to precedent ensures
cases are treated alike, resulting in equality
• Dworkin’s explanation of theory focuses on individual’s rights
The rule of law in the UK
- s.1 Constitutional Reform Act 2005 shows that Parliament acknowledges existence of rule of law
and its importance in UK Constitution, although no definition is given
• R (Privacy International) v Investigatory Powers Tribunal [2019] — discusses lack of definition
of rule of law, but agrees with Lord Bingham that it is up to courts to decide its contents and
limits
