In the course of this essay I will discuss in relation to the two schools of thought on the Rule of Law and how the rule of law protects citizens against unlawful executive action due to the government being restrained from acting without authority , whilst focusing on whether its precise content, goals and application continues to lack clarity.The rule of Law is well known to not have a single agreed definition, but actually multiple opposing meanings, although the core of the rule of Law can be lifted from Tom Bingham- ‘All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered by the courts.’ (1)The leading concept of the rule of law is that the law should secure the relationship between the government and the people therefore protecting the people from excessive governmental power. The rule of law is the idea that the law should govern, protect and apply to all conduct and behaviour which also includes both private and public officials, thus it highlights its main notions that no one is above the law, there is equality for all before the law, and that despite anything that the law is always applied.
Moreover, I will now focus on the two schools of thought that are one of the most obvious reasons of its multiple definitions. Formal conceptions of the rule of law address the way in which the law was promoted by discussing whether it was sanctioned by an authorised person, in an legal and authorised way. Furthermore, is the law sufficiently clear to guide an individual’s behaviour .Thus, formal rule of law believes laws must adhere to certain procedural requirements. The formal view does not target the morality of the law, but instead focused on whether the law matches up to the criteria of the Rule of Law. Joseph Raz is a core promoter of the formal rule of 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’. (2) Therefore, formal rule of law does not intend to pass judgment upon the actual content of the law itself. It is less concerned as to whether the law is a good law or a bad law, but actually that the goals of the rule of law are met and thus working as a shield between the individual and excessive governmental power.
In oppositon, substantive conceptions of the rule of law focus on the morality of the law and not only the practicality. They accept that the rule of law has the formal qualities, however they prefer to discuss it on a more moral level. Substantive conceptions prefer to use the formal law criteria as a basis and then differentiate between what is a morally good law or bad laws. Leon Fuller a legal philosopher who discussed the morality of law (3) analysis takes a much more substantive view than Raz’s. According to Fuller the law must possess some form of internal morality to be worthy of being called a legal system and if they lack the internal morality it leaves them simply being a governmental system and not a legal system. Moreover, a legal system must have the populations best interest and not just ignore whether the law is morally secured or not. .
In the book ‘Rule of Law’ (4) Lord Bingham highlighted on what he believed to be the 8 sub-sections to the rule of law, in a rather substantive view. An example of is which is that ‘legal and adjudicative processes should be fair’. Professor Dicey wrote about his take on the Rule of Law in his book, Introduction to the study of law of the constitution (5) Dicey’s theory of law formed from three concepts of principles.
Dicey believed the rule of law could be summarised by three broad aims. Dicey voiced ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint’. This suggested that in England, you were not allowed to be taken into prison if there was no proof of a law being broken. If a law is not broken, an individual can not be made to suffer. This suggested that the legal system was run by society and thus, governments could only do what is consented by the law.
Furthermore, ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’. This could be interpreted that all individuals are equal and not based on classes, therefore even if they break the law all individuals will be punished and sentenced the same way by the same law and the same concept. Therefore, the governments and individuals will all obey the same law and so there will be no special cases. .
Finally, There is no need for a bill of rights because the general principle of the constitution are the result of judicial decisions determining the rights of the private person. Dicey’s opinions were highlighted in the case of Entick v Carrigton (6) where the courts affirmed that a warrant issued by a home secretary for entry into private property and seizure of allegedly seditious material was against the law and amounted to trespass. Highlighting how the Rule of law was acting as a shield between individual and excessive governmental power, with full clarity in both application and content and therefore improves the protection on an individual.