Essay question
'The rule of law requires not merely that government act pursuant to law, but that the law itself meet certain standards of justice.' Discuss.
---
Model answer
This proposition invites analysis of the distinction between formal (thin) and substantive (thick) conceptions of the rule of law. The formal view — associated principally with Joseph Raz — holds that the rule of law is concerned with the manner in which law is created and administered, not its moral content. The substantive view — advanced by Ronald Dworkin, Lord Bingham, and (in certain respects) Trevor Allan — insists that the rule of law incorporates protection of fundamental rights and principles of justice. This essay will argue that, while the formal conception provides a clear and coherent analytical framework, the best account of the rule of law in the United Kingdom constitution today is a moderate substantive view: government must act pursuant to law, and that law must meet minimum standards of justice, particularly in relation to clarity, access to remedies, and protection of fundamental rights.
Formal conceptions: Raz and procedural virtues
Raz's formal theory identifies the rule of law as a virtue of legal systems analogous to the sharpness of a knife: a quality that enables law to perform its function of guiding conduct, irrespective of the ends to which it is put. Raz lists eight requirements, including that laws be prospective, open, clear, stable, and administered by an independent judiciary. A legal system can satisfy these criteria and still enact unjust laws; conversely, a just law that is secret, retroactive, or vaguely worded violates the rule of law. Raz emphasizes that 'non-democratic legal systems, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies' (Raz, 'The Rule of Law and its Virtue', LQR 1977).
This account has significant strengths. It avoids collapsing rule of law into an omnibus standard of political morality. It respects the positivist separation of law and morality and is compatible with parliamentary sovereignty: Parliament may enact any content, provided it is clear and prospective. It also provides determinate, operational criteria: one can assess whether a statute is prospective and clear without resort to contested moral judgments. For these reasons, the formal conception has been influential in constitutional theory and is particularly congenial to scholars (such as John Finnis and Richard Ekins) who prioritize democratic legitimacy and legislative supremacy.
Yet the formal conception faces important criticisms. It seems counterintuitive to say that Nazi Germany's Nuremberg Laws complied with the rule of law merely because they were clearly drafted and consistently applied. As Dworkin noted, such usage drains the concept of its moral resonance: if we praise a legal system for adhering to the rule of law, we imply approval, not merely technical proficiency. Fuller's account in The Morality of Law (1964) suggests that the 'internal morality' of law — its procedural virtues — has an inherent connection to justice: a system that respects the eight principles of legality tends to respect persons as rational agents capable of guiding their own conduct. Fuller's view occupies a middle ground but is often classified as a weak substantive theory: procedural virtues have moral significance and tend (though do not guarantee) to constrain the enactment of grossly unjust rules.
Substantive conceptions: Dworkin and rights as trumps
Dworkin argues that law is interpretive and permeated by moral reasoning. The rule of law, properly understood, is not simply rule by law but rule by law that respects individuals' rights. On this view, a statute permitting arbitrary detention or denying fair trial violates the rule of law even if it is clear and prospective. Dworkin's theory is theoretically demanding: it collapses the distinction between legality and legitimacy and offers little practical guidance for institutional design. It also raises acute questions about the role of unelected judges: if the rule of law entails substantive justice, judges enforcing rule of law must inevitably make controversial moral judgments, potentially usurping the legislative function.
Lord Bingham's eight principles represent a more moderate substantive approach. Most are formal or procedural: law must be accessible and clear (principle 1); disputes should be resolved by law not discretion (2); equality before the law (3); fairness and legality in the exercise of public power (4); fair adjudicative procedures (7). But principle 5 states that 'the law must afford adequate protection of fundamental human rights', and principle 6 requires accessible and affordable dispute resolution. These principles incorporate substantive values: a legal system that denied freedom of expression, or made justice prohibitively expensive, would fail Bingham's test. Bingham candidly acknowledges that his account is rooted in liberal constitutionalism, not value-neutrality. It reflects the tradition of Magna Carta, habeas corpus, and the ECHR. His work has been cited with approval by the Supreme Court (Unison, Privacy International) and represents the current judicial consensus.
The United Kingdom's constitutional practice
Examination of UK case law and statutory practice suggests that a moderate substantive conception best describes the operative understanding of the rule of law. Entick v Carrington (1765) is foundational: executive action must be justified by law. This is a formal principle (legality), but the case also vindicates a substantive right (security of property and person against arbitrary search). M v Home Office [1994] 1 AC 377 held that ministers are subject to the law and that courts may grant coercive remedies against the Crown. Lord Templeman stated that the 'argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War' (at 395). This is more than formalism: it expresses a substantive commitment to equality before the law and accountability.
Pierson [1998] AC 539 introduced the principle of legality: statutory powers must be exercised compatibly with fundamental rights unless Parliament uses clear words to the contrary. Lord Steyn emphasized that 'Parliament must squarely confront what it is doing and accept the political cost'. The principle of legality is sometimes classified as an interpretive tool, but it has substantive bite: it presumes that certain rights (access to justice, legal professional privilege, the right not to be retrospectively penalized) are protected unless expressly abrogated. In Simms [2000] 2 AC 115, Lord Hoffmann described fundamental rights as part of the 'principles of constitutionalism and democracy' underpinning the legal order.
Unison [2017] UKSC 51 is particularly instructive. The Supreme Court struck down tribunal fees because they rendered access to justice unaffordable. Lord Reed held that the constitutional right of access to courts is 'inherent in the rule of law' and 'cannot be removed by the executive… by charging fees'. Access to justice is not simply a formal procedural requirement; it entails that remedies must be realistically available, which in turn requires that cost not be prohibitive. This is a substantive rule-of-law commitment.
Privacy International [2019] UKSC 22 concerned ouster clauses. A bare majority held that even a strongly worded privative clause could not exclude judicial review for jurisdictional error. Lord Carnwath grounded this in the rule of law and the constitutional status of judicial review: 'It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review' (at [144]). This dictum — while controversial and not shared by all the justices — suggests a constitutional principle that may, in extremis, constrain even Parliament. It is difficult to reconcile with a purely formal conception.
Reconciling substance with sovereignty
The chief objection to substantive conceptions is that they sit uneasily with parliamentary sovereignty. If the rule of law includes protection of rights, and if courts enforce the rule of law, does it follow that courts may invalidate legislation that violates rights? Orthodox doctrine answers no: courts must apply clear statutory language even if it violates rule-of-law principles (Simms; R (Chester) v Secretary of State for Justice [2013] UKSC 63). The principle of legality is an interpretive tool, not a power to strike down statutes.
Yet this position is increasingly strained. In Jackson [2005] UKHL 56, Lord Steyn and Lord Hope suggested that the courts might refuse to recognize legislation that abolished judicial review or undermined the rule of law in fundamental respects. In Privacy International, Lord Carnwath's reasoning comes close to asserting that judicial review is a constitutional fundamental which even Parliament cannot abolish without the 'most clear and explicit words' — and perhaps not even then. These dicta are obiter and contested (Lords Sumption, Reed, and Wilson were more cautious), but they reflect disquiet that parliamentary sovereignty might be used to dismantle the constitutional order itself.
Trevor Allan argues that parliamentary sovereignty and the rule of law are co-equal constitutional principles, and that sovereignty is legitimate only when exercised consistently with the rule of law. On this view, a statute purporting to authorize indefinite detention without trial or to abolish judicial review entirely would be so repugnant to constitutional principle as to be unenforceable. This is common law constitutionalism: courts, as guardians of the rule of law, may in extremis decline to apply legislation that transgresses fundamental constitutional limits. The counter-argument, articulated by Richard Ekins, is that this approach undermines democracy: if unelected judges can invalidate legislation on rule-of-law grounds, sovereignty shifts from Parliament to the judiciary.
The tension is real and unresolved. In practice, the risk is mitigated by the principle of legality and the political constitution: Parliament is unlikely to enact legislation in terms that baldly violate rule-of-law fundamentals, and if it did, political accountability would operate. The Human Rights Act 1998 provides a structured compromise: courts may declare incompatibility but not invalidate primary legislation. Section 3 HRA requires interpretation compatible with Convention rights 'so far as it is possible', which imports substantive rule-of-law values into statutory construction without formal entrenchment.
Conclusion
The proposition that the rule of law requires law to meet certain standards of justice is, I conclude, correct — but the standards must be carefully delimited. A purely formal conception is analytically elegant but fails to capture the constitutional practice of the United Kingdom, where courts have consistently held that access to justice, non-retroactivity, clarity, and (increasingly) fundamental rights protections are intrinsic to the rule of law. Lord Bingham's synthesis offers a principled middle path: procedural virtues (clarity, prospectivity, independence) are necessary, but insufficient. The rule of law also demands that statutes and executive action respect human rights, afford effective remedies, and treat citizens equally. This substantive dimension is not infinitely expansive — it does not require that all laws be 'just' by some philosopher's metric — but it does impose meaningful constraints.
The challenge for constitutional theory is to reconcile this substantive conception with parliamentary sovereignty. The principle of legality, Human Rights Act section 3, and judicial restraint provide partial solutions. In the vast majority of cases, interpretive tools suffice: courts construe statutes consistently with rule-of-law values without invalidating them. Whether courts would, in the last resort, refuse to enforce legislation that abolished judicial review or authorized arbitrary detention remains an open question. For now, the rule of law in the United Kingdom operates as a robust substantive principle enforced through interpretation, judicial review of executive action, and (where necessary) declarations of incompatibility — not as a constitutional trump over clear statutory language, but as an insistent and pervasive constitutional value that shapes the entire legal order.
Word count: ~2,050