1. INTRODUCTION TO CONSTITUTIONS AND CONSTITUTIONALISM
1. RULE OF LAW
Alternative Rule of Law Formulations
Thinner → → → → → → → → → → to → → → → → → → → → → Thicker
Formal Versions: 1. Rule-by-law 2. Formal Legality 3. Democracy + Legality
- Law as instrument of - general, prospective, - consent determines content of law
government action clear certain
Substantive 4. Individual Rights 5. Rights of Dignity 6. Social Welfare
Versions - Property, contract, privacy, and/or Justice - substantive equality, welfare,
autonomy preservation of community
1.1 FORMAL THEORIES – RAZ
“the law must be capable of guiding the behaviour of its subject”
According to Raz, these elements include that the law must be prospective, general, clear public, and relatively stable.
To this list Raz added several mechanisms he considered necessary to effectuate rules of this kind: an independent
judiciary, open and fair hearings without bias, and review of legislative and administrative officials and limitations on the
discretion of police to insure conformity to the requirements of the rule of law.
Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review, 195, 210-211, argue that the law should be
content free. He argues that the rule of law should only be about the form and procedures by which law is created. There
is no content for the rules prescribed within this view. Raz offered a number of principles for the rule of law:
v All laws should be prospective, open and clear;
v Laws should not be subject to constant change;
v General and clear rules should be applied to the creation of laws;
v The judiciary should be independent;
v Decision making by public officials should follow principles of procedural fairness;
v The court should have review powers over decisions;
v Courts should be easily accessible;
v Crime prevention agencies should not have discretion to pervert the law.
Raz argues that the rule of law is a negative concept, which is merely designed to minimise the harm to freedom and
dignity which the law may create in the pursuance of its goals. The rule of law is meant to enable the law to promote
social good. A content-free concept of the rule of law thus doesn’t specify what the substantive rules should be, just that
the process of the creation of law should be carried out with procedural fairness. Law can be discriminatory, but if it is
created following normal Parliamentary procedures, then it is following the ‘rule of law’ according to Raz’s concept.
1.2 SUBSTANTIVE THEORIES - DWORKIN
‘Political Judges and the Rule of Law’ in A Matter of Principle (OUP, 1985), pp1-12, supports the alternate view,
challenging the content-free idea of the rule of law. Dworkin refers to the ‘rule book’ conception of the rule of law, in
which substantive justice is an independent ideal and are in no sense part of the ideal of the rule of law. He distinguishes
this from the ‘rights’ conception of the rule of law. It assumes that citizens have moral rights and duties with respects to
one another and political rights with respect to the state as a whole. This concept of the rule of law doesn’t distinguish
between the rule of law and substantive justice; instead, it requires that as part of the rule of law that rules within the
rulebook encompass and enforce moral right. This right’s conception is more complex than the ‘rulebook’ conception.
Compliance with the rulebook on its own is clearly not sufficient for justice, although a breach of the rulebook theory of
the rule of law is likely to lead to injustice. However, a society that accords with the right conception of the rule of law is
likely to be a just society.
Chloe T 1
1. RULE OF LAW
Alternative Rule of Law Formulations
Thinner → → → → → → → → → → to → → → → → → → → → → Thicker
Formal Versions: 1. Rule-by-law 2. Formal Legality 3. Democracy + Legality
- Law as instrument of - general, prospective, - consent determines content of law
government action clear certain
Substantive 4. Individual Rights 5. Rights of Dignity 6. Social Welfare
Versions - Property, contract, privacy, and/or Justice - substantive equality, welfare,
autonomy preservation of community
1.1 FORMAL THEORIES – RAZ
“the law must be capable of guiding the behaviour of its subject”
According to Raz, these elements include that the law must be prospective, general, clear public, and relatively stable.
To this list Raz added several mechanisms he considered necessary to effectuate rules of this kind: an independent
judiciary, open and fair hearings without bias, and review of legislative and administrative officials and limitations on the
discretion of police to insure conformity to the requirements of the rule of law.
Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review, 195, 210-211, argue that the law should be
content free. He argues that the rule of law should only be about the form and procedures by which law is created. There
is no content for the rules prescribed within this view. Raz offered a number of principles for the rule of law:
v All laws should be prospective, open and clear;
v Laws should not be subject to constant change;
v General and clear rules should be applied to the creation of laws;
v The judiciary should be independent;
v Decision making by public officials should follow principles of procedural fairness;
v The court should have review powers over decisions;
v Courts should be easily accessible;
v Crime prevention agencies should not have discretion to pervert the law.
Raz argues that the rule of law is a negative concept, which is merely designed to minimise the harm to freedom and
dignity which the law may create in the pursuance of its goals. The rule of law is meant to enable the law to promote
social good. A content-free concept of the rule of law thus doesn’t specify what the substantive rules should be, just that
the process of the creation of law should be carried out with procedural fairness. Law can be discriminatory, but if it is
created following normal Parliamentary procedures, then it is following the ‘rule of law’ according to Raz’s concept.
1.2 SUBSTANTIVE THEORIES - DWORKIN
‘Political Judges and the Rule of Law’ in A Matter of Principle (OUP, 1985), pp1-12, supports the alternate view,
challenging the content-free idea of the rule of law. Dworkin refers to the ‘rule book’ conception of the rule of law, in
which substantive justice is an independent ideal and are in no sense part of the ideal of the rule of law. He distinguishes
this from the ‘rights’ conception of the rule of law. It assumes that citizens have moral rights and duties with respects to
one another and political rights with respect to the state as a whole. This concept of the rule of law doesn’t distinguish
between the rule of law and substantive justice; instead, it requires that as part of the rule of law that rules within the
rulebook encompass and enforce moral right. This right’s conception is more complex than the ‘rulebook’ conception.
Compliance with the rulebook on its own is clearly not sufficient for justice, although a breach of the rulebook theory of
the rule of law is likely to lead to injustice. However, a society that accords with the right conception of the rule of law is
likely to be a just society.
Chloe T 1
