Formal And Substantive Commitment To The Rule Of Law

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The rule of law is a principle/theory which simply states that the system of government should be on the basis of the law rather than the basis of individual politics and has to be followed by everyone including the crown, politicians and members of the executive. It is seen to be a simplistic approach that reinforces the principle that it is fundamental to comply with the law as seen by Jowell. Its origins can be dated back to the Magna Carta in 1215 and have over the years been established to protect UK citizens from arbitrary powers ensuring nothing is made on the basis of arbitrary whims and instincts. The rule of law provides that the executive may do nothing without clear legal authority first permitting their actions. Dicey defines the rule of law in a more modern approach as he developed, three elements, within the rule of law that state citizens can only be sanctioned when a law has been broken, before the eyes of the law everyone is equal and that its main concern is the protection of individual rights. The rule of law can further be analysed by looking at them in terms of formal and substantive conceptions.

The formal rule of law and formal concepts look at the content of the law and believe that for there to be a government under the law, there must be a certain procedure required to be followed and respected by the government thus protecting citizens from arbitrary whims,

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Joseph Raz is a key advocate of the formal law and states that in order to achieve the desired certainty laws should be ‘prospective, clear, adjudged by an independent judiciary and must allow its citizens access to the courts’. Theorist Craig further explains that the formal concept developed directly addresses the way in which the law is and the idea of the law is either good or bad is actually not questioned.

Substantive concepts on the other hand of the rule of law do however take into account the contents of a situation is arguably more complex due to the fact as there is an argument present that the law should include an element of morality. Craig explains that substantive concepts seeks to go beyond the formal conceptions. Whilst formal conceptions of law do not seek to pass judgment upon the content of the law substantive conceptions of the rule of law seek to go above and beyond this. They acknowledge and accept the rule of law does indeed have some formal attribute however their concern can be linked-to focusing on the individual and protection of their rights which arguably includes the protection of their liberties as stated by Dworkin.

The formal conceptions of the rule of law is also further developed by Raz who states that “if the law is to be obeyed it must be capable of guiding the behaviour of its subjects.” by saying this he set out a list of formal and procedural characteristics that should be possessed by the law in order to guide society and in theory provide justice. In the case of R( Anufrijeva) v Sec. State for the Home Department [2004], Lord Steyn put importance on the idea of considering the rule of law formally by stating that it is actually counted to be a constitutional principle to recognize the role of law in its procedural aspect which in this case allowed for benefits to be received by a citizen due to the system that had been created by the rule of law being transparent, open and clear.

As mentioned above the substantive concepts of the rule of law takes into account the contents of the situation and so is more complex than formal concepts. Allan contrary to the theorists mentioned above informal conceptions of the rule of law, believe in the principles of fairness and equality and whilst formal concepts does not focus on the idea of ‘good’ or ‘bad’ laws Allan argues that a procedure is not enough to preserve equality. He believes that due to this lack of fairness the substantive concept of the rule of law is indeed what is needed to make up for this attachment to contextualizing issues.

Whilst formal and summative concepts of the rule of law do hold differences in opinions it is also important to consider that they are both very prevalent in case law. In the case of R v Lord Chancellor, ex parte Witham [1998] the Lord Chancellor was key in showing the idea that continents is an important factor that can’t be overlooked when upholding the rule of if the contents was not explored in this circumstance a just outcome would not have been received.

In conclusion, it is clear that the UK does not have an entirely formal or substantive commitment to the rule of law, but rather recognizes that both concepts are necessary for the proper functioning and maintenance of the rule of law. The two concepts have been integrated equally by the judiciary and the means of concluding cases are different for each case but are balanced between the two concepts with the main goal being to ensure the rule of law is properly protected. However, it can be said that using substantive concepts can bring more justice due to the nature of providing more context.


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