Formal and Ideological Concept of Rule Of Law

By | December 9, 2019
Trial in Summons Cases

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Formal and Ideological Concept of Rule Of Law | Overview

This article talks about the distinction between the formal and the ideological or substantive Rule of Law, first by establishing the connection of ideological and substantive law being interlinked. And further tries to understand the different approaches of both the concepts in sustaining the Rule of Law. Their limitations also form part of this article.

Introduction

“The Rule of Law is one star in a constellation of ideals that dominate our political morality: the others are democracy, human rights, and economic freedom.”[1]

To begin with, the three principles laid down by dicey have come to evolve and interpreted in multiple ways and some thinkers and researchers have even distributed them in more than 3 principles. The most famous ones currently are Tom Bingham, an eminent British judge who gave 8 basic principles of the Rule of law in his book. [2]

These are as follows:

  1. The intelligibility, clarity and predictability of law to ensure rights and know the consequences of certain actions
  2. The resolution of problems concerning rights and liabilities by application of law and not discretion
  3. The application of the laws of the land equally to all, unless in cases of reasonable differentiation
  4. The fair usage of power that is vested unto them by the ministers and public officials
  5. The law must guarantee and protect the fundamental rights of the individuals under it
  6. The law must provide for cost and time effective resolution of issues, especially in cases where additional dispute resolution has failed
  7. The right to a fair trial must be provided to all
  8. The law along with following domestic rule of law must also comply with international laws and norms

These principles have certainly regressed from the ones given by Dicey originally, but have come to be wider and inclusive.

Coming to the second part of the title which is ideology. Ideology is referred to as the complex system of political, sociological and other ideas. Ideas are different from ideologies as ideologies are a product of formal conceptualisation of ideas. The evolution of ideas can be called as an ideology. Then what are ideals? Ideals are those things or concepts deemed as perfect and the eventual achievement of them.

Law and politics are deeply interconnected and the ideologies expressed by law and politics can be said of two types “constructive” under which keeps each other in checks and hence maintaining a balance. The other can be said is (self)destructive under which the clear distinction blurs,[3] and one infiltrates the other, thus creating despotic and totalitarian regimes as the power with each has no boundaries.

For example, the authorities taking the law in their hands, or the law overruling all the decisions of the authorities in political power. Through these political ideologies, legal systems are put into place. Like the liberal, fascist, communist and other ideologies, give rise to that type of government or rule. The ideology comes from the French word ideologie and the Greek idea which means form or pattern + logos that denotes a discourse or compilation.

This comes very close in meaning to substantive law or justice which refers to the law that creates or defines rights, duties, obligations, and causes of action that can be enforced by law. The study of ideologies is unquestionably the study of substantive, concrete configurations of political ideas that matter to, and in, societies.

Thus this article ponders on the differentiation between the formal and ideological, or in common legal parlance, the procedural and substantive application of the Rule of law.

The gradation from formal to substantive rule of law can be understood on three levels that range from the first level ‘rule by law’ where the government is not accountable to the law but works through the use of laws.

The second level is of ‘formal legality’ where the substantive law that is the substance has no value, and the stress is on formal conceptions. And finally to the last level of “democratic rule of law” which comes the closest to securing the people’s interest and rights.[4]

I. Formal Rule of Law

“The formal conception states that the rule of law is satisfied when laws conform to certain formal and procedural requirements: legal rules should be general, prospective, clear, non-contradictory, relatively stable, promulgated, etc; and legal proceedings should enable the correct application of legal rules by being fair and open, being presided over or reviewed by an independent judiciary, etc.”[5]

Formal originations of the rule of law don’t try to condemn upon the genuine substance of the law itself. Dicey’s origination of the rule of law is the most popular and has been exposed to various studies and criticisms. Dicey’s conception is mostly concerned with formal rules and access to the courts.

But, for formal theory, having a law is important in light of the fact that, despite what is actually written in the law, lawful principles that are appropriately confined, controlled and arbitrated, empower consistency and legitimacy of the consequences of it. Through which the individuals’ dependence on the law, and subsequently their interests and autonomy is ensured.

In contemporary times, the most prominent formalist is Justice Antonin Scalia, author of a celebrated article entitled “The Rule of Law as a Law of Rules”

Lon Fuller gives eight principles of “inner morality of law” that are formal as they regulate the conduct and norms for the general public. These are generality, publicity, proceptivity, intelligibility, consistency, practicability, stability and congruence.[6] We can notice here the similarities between Tom Bingham’s principles and these given here thus pointing to the evolution of rule of law and its adaptability.

For the proper assimilation of the Rule of Law, it is necessary for it to be public, and although technical laws may not be understood by the lay-men and may need professional legal help it is still the duty of the law to provide this accessibility.

When the sources of law are hidden and obscure and most of it is based on precedent sand made by judges as they go along, it is taking away a citizen’s right to know the consequences of their actions and the predictability of it. Jeremy Bentham criticized customary law in general, and common law in particular, for failing to satisfy this requirement.

Other procedural requirements along with formal law are impartial hearing of individuals accused with the use of evidence and arguments, the right to be represented by a legal counsel, the right to question witnesses and the right to hear the reasons of a particular decision that a court or tribunal arrives at finally.

These are the commonly acknowledged formal prerequisites with regards to the general qualities of law and the lawful framework. These prerequisites are based on the requirement for regard for human autonomy and dignity, for which the law must be freely available and accessible, coherent and applicable in its relevancy by ordinary courts.

It could be said that substantive laws are the superset under which formal procedural laws are formed and implemented as sub-sets. But this cannot be a clear cut binary.

Limitations

Many researchers believe that a completely formal rule of law will easily give rise to abuse of power, authoritarian regimes and an illegitimate government, that may follow the formal procedural rules but violate what is at the essence of it which is protection of rights, and might imbibe discriminatory practices or unreasonable coercion of citizens, etc.

The second contention is that No rule, it is said, can determine its own extension[7]. Formalism is a sort of down to up approach wherein the formal guidelines establish the rule that exists, and a question of whether a rule applies to particular facts is always possible.

It is also stated that the formal rule of law may contain a lack of ethical and moral stand as rules are merely impersonal, generalised guidelines. For instance, during the prevalence of apartheid, it was a set standard that coloured people were supposed to sit at the back of the public transport buses. This standard had no ethical basis and was against the right to choose but was yet to be followed and enforced.

II. Ideological or Substantive Rule of Law

According to the substantive conception, however, the formal conception only tells half the story. The rule of law, according to the substantive conception, is not exhausted by procedural and formal requirements for, while insisting on these requirements, the rule of law additionally demands that law be, in some nontrivial sense, substantively just.

Typically this is taken to mean that the law must take fundamental rights seriously.[8] It can be called a morally authoritative guide to human conduct.

Some thinkers believe that the legitimating capacity performed by the rule of law is not really useful and is feigned. For example, Trevor Allen is a strict believer in the substantive conception of the rule of law. But many others also follow thinkers like Raz who believe that Rule of law is absolutely formal or procedural.

Many associates the Rule of Law with an assumption of freedom, liberty, equality and human rights and dignity. Others—Arthur Chaskalson hinted at this—associate the Rule of Law with a substantive element of democracy.[9]

Although, some scholars question the fact that must the rule of law broaden its scope to substantive law requirements, for the content of law alone, in spite of the formal laws that define the procedure and rules in the system for the mere existence of this dichotomy. Formal/procedural aspects generate a certain momentum in a substantive direction.

Including Dicey who said that “ the current system of pupils’ reading law in chambers was inadequate because it was fragmentary and unsystematic: pupils learned only random, particular points of law without developing an appreciation for the grand legal principles that unified the topics of tort, contract, and the common law as a whole.”[10] Which states that for him a substantive study of law was of utmost important compared to its formal conceptual study.

Limitations

It is not approximate, doesn’t contain a consistent, orderly, set of principles and it is vague in nature, thus society will fail to comprehend its ideal. The most famous example cited here is that of protection of private property which comes at the heart of rule of law, along with life and liberty.

Courts can only secure ones private property if there is a conceptually defined, substantive definition of “property”[11] and that the processes that allow these rights to security of property are applied as mentioned in the definitions and not according to the interests of those in power. (Ronald Cass)

Another question of the requirement and the existence of the law is also raised as to is a certain law what it is ought to be, because of the scope of arbitrariness that it allows, which is theoretically in contradiction with what the basic principles of Rule of Law stand for.

Substantive law is a fallacy of tautology, which is,  it goes around in circles when it comes to arguing for it, as the substantive conception relies on substantive claims of political morality and good.

Conclusion

After the consideration of both these types of Rule of Law, it looks as though a type of conflict prevails between the thought of prevalence of Formal Rule of Law or Substantive rule of law. For example, those who favour property rights and the market economy will incline towards formal conception whereas the ones who prefer moral ideals like human rights and non-discrimination, social justice etc will be towards the idea of substantive conception.

But it is utmost important to understand that the exemplary application of Rule of Law will need the incorporation of both of these concepts and their execution at the pertinent times, to hold up the system of government.


[1] The rule of law and the importance of procedure by Jeremy Waldron

[2] The Rule of Law by Tom Bingham, 2011

[3] The Ideology of the Rule of Law by Miro Cera

[4]  Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004, p. 91

[5] Waldron, ibid.2

[6] The Morality of Law, by Lon L. Fuller

[7] Mark V. Tushnet, Scalia and the Dormant Commerce Clause: A Foolish Formalism

[8] Alison L. Young, The Rule of Law in the United Kingdom: Formal or Substantive

[9] Hart 1961: ch. 8

[10] A.V. Dicey, Can English Law Be Taught at the Universities? (London: Macmillan, 1883) [Dicey, Can English)

[11] Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985)


  1. Constitutional Provisions Embodying The Rule Of Law
  2. Dicey’s Formulation Of Rule Of Law