Introduction as both prescriptive and evaluative. This conception

Introduction 

The
rule of law is a contested concept. There are reams of academic literature about
what the rule of law is; whether it is formal or substantive – thin or thick. The
thick concept is one that explains the rule of law as both prescriptive and
evaluative. This conception discourages the separation between the rule of law
and the substantive values promoted by the law.  It regards certain ideas of freedom, rights,
and justice as integral components of the rule of law. The thin conception, on
the other hand, defines the rule of law as only prescriptive. It looks to the
presence or absence of specific, observable objective criteria of the law or
the legal system.1

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In
this essay I argue that understanding the rule of law as two clearly
distinguishable conceptions is unhelpful. The basis for my argument is
two-pronged: first, at it element the rule of law is about constraining the
exercise of arbitrary power.  Thus the
thin understanding of the rule of law does not effectively achieve this if it
allows for actions that result in the abuse of fundamental rights. Second, the
understanding of the rule of law is both as a principle of governance and a
theory of law or a principle of law. Therefore, the rule of law requires a
combination of thin (principles governance – the making of laws) and thick
features (principle – the nature of the laws) of law.  Both conceptions are necessary for a good
legal system. In its prevention of arbitrariness, the rule of law is not primarily
concerned with government as an institution as such but of the laws and legal institutions; whether
they can be relied upon.
This is consistent with what Joseph Raz states: the rule of law has two aspects
“(1) that people should be ruled by the law and obey it, and (2) that the law
should be such that people will be able to be guided by it.”2
The second part of Raz’s statement, in my judgment, is evaluative; it speaks to
what something must be like to be regarded as law. The first relates to
governance.

 

Theories of the rule of law

 

Tamanaha
outlines the the rule of law theories on a continuum with formal and
substantive theories on opposite ends of the spectrum.3
At the thin end of the spectrum requires government or citizen action to be
sanctioned by law and is not concerned at all with the nature of the action the
law sanctions.4 This
is primarily the rule of law as a principle of governance. As we move to the
other end of the spectrum, we consider the conception often associated with Joseph
Raz: formal legality.5
In this guise, the rule of law requires laws to be public, clear and prospective
in their applications. Compliance with the rule of law is an ideal or a virtue
that a legal system may possess or achieve as a matter of degree. I consider
that this conception of the rule of law has some features that overlap with the
substantive conception of the rule of law. However, Raz rejects the notion that
the system of law must be based on justice or morality in order for it to be
inline with the rule of law.6
To Raz the rule of law is only a constitutional principle that is part of the
legal order, rather than a political principle that requires adherence to
democratic principles or forms of political ideology.  This is conception of the rule of law as a
principle of law.

 

In
sum, the rule of law as a formal legality concerns itself with the manner, form
and procedures of law. And includes principles of natural justice (procedural
fairness), right to an open and fair hearing and absence of bias on the
arbiter. This is more substantive in character than Raz is willing to
acknowledge. As has been argued the determination of the extent procedural
fairness is achieved is context-specific.7
Another thicker formal conception of the rule of law is the conception of the
rule of law as requiring legality and democracy.8
The only difference between the more substantive theories and Raz’s theory is
over the type of rights or the content used to evaluate the law not whether or
not it should be evaluated.

 

The
conceptions regarded as placing on the substantive end of the continuum include
aspects of the formal theories mentioned above, but add emphasis on content
requirements for law.9
They add more criteria for the evaluation of the law. These theories require
legality, democracy and laws that are just. Most basically, they require that
laws protect individual rights. Furthest to the substantive end of the
continuum is the idea that the rule of law requires the realisation of justice through
the commitment to the right to dignity. At the end of continuum is the
realisation of socio-economic welfare in addition to formal legality,
individual rights and democracy.

 

The theories are
complimentary: Principle of law and principle of governance

 

The
thickness the rule of law, in my judgment, is affected by socio-economic
transformation. The Magna Carta 1215 for example, which is regarded as fundamental
milestone for the rule of law enshrined the protection of the individual rights
of “free man”.10 This
meant that laws governing slavery may be said to have both procedurally and
substantively sound; thus that system was understood to be compliant with the
rule of law. Additionally, the rights of the slaves were therefore not
protected and this differentiation was reasonable in the legal society of that
time. That legal system was both in substance and form compliant with the rule
of law as the virtue of the society at the time. Another example is the
governance through monarchies versus the democratically elected government
where the former is regarded as unreasonably limiting citizen’s right to elect
their government.11

 

Thus
the limitations of a purely substantive conception is that people’s rights are
not universal; systems of governance – democracy, monarchy do not guarantee the
realisation of justice. Property rights, to people that were historically
disposed, may be more valuable and fundamental than rights to secrecy.  Thus imposing the rule of law as a rigid
universally common concept at its element risks instances of certain dominant
parts of society dictating to other societies what is good and what is not.12
I also argue that since the rule of law is an ideal,13
it is untenable why there is a need for rigid conceptions of it content.
Requiring the thickest form of the rule of law as a minimum standard makes the
rule of law illusive – with its definition and effectiveness redundant if no
society can ever achieve it. 

 

Conclusion

 

I
conclude that the conception of the rule of law should not be either thick or
thin.  It should aim to have both
elements. It does have both elements. 
This way the rule of law becomes an effective and neutral device that
guarantees formal integrity of the processes of law, politics and governance.
It maintains a level of independence from political theories and in its
function by not being overly descriptive in relation to what makes a good law. The
two conceptions should be regarded as complimentary. The form exists to ensure
that the substance regardless of its benefits is passed or made in line with
the process. And the substance exists to ensure that notwithstanding its
correct form the law is of the nature that is capable of guiding behaviour in a
particular socio-economic environment.

1

2                 Raz 1979, p214)

3                 Tamanaha 2001, pp 104 -106

4                

5                 Raz The rule of law and its virtue (1977) 93 Law Quarterly Review 195–
p211

“The
rule of law is a political ideal which a legal system may lack or may possess
to a greater or a lesser degree.  . . .
It is also to be insisted that the rule of law is just one of the virtues which
a legal system may possess and by which it is to be judged.  It is not to be confused with democracy,
justice, equality (before the law or otherwise), human rights of any kind or
respect for persons or dignity of man. A non-democratic legal system, based on
the denial of human rights, on extensive poverty, on racial segregation, sexual
inequalities, and religious prosecution may . . . conform to the requirement of
the rule of law”

6 Raz
p203.

7 Jowell The rule of law today 17.

8 Tamanaha
Rule of Law 91, 99-100.

9 102.

10 Insert
chapter 39 for example.

11 Thomas
Paine The Rights of Man

12 Hijab
discussion between Arab and Western feminists.

13               Raz, and others – the rule of law
is a political ideal.